Mir Hassan alias Fouji Brohi Versus State
Order
Muhammad Saleem Jessar, J .--- Through this application, the applicant Mir Hassan alias Foji son of Muhammad Hassan Brohi, seeks his admission to pre-arrest bail in Crime No.26 of 2025 registered at P.S Lashari, District Larkana, for offence under Sections 324, 337-A(i), 337-F(i), 337-H(2), 114, 148, 149, P.P.C. Case has been challaned, which is now pending for trial before the Court of Civil Judge and Judicial Magistrate-1, Ratoder vide Cr. Case No. /2025 re-The State v. Mir Hassan alias Foji Brohi and others. The applicant preferred anticipatory bail before the Court below, which by means of order dated 07.07.2025 was declined by the Court of Additional Sessions Judge, Ratodero; hence, this application has been maintained.
2. According to the case of prosecution, on 07.06.2025, after Eid-ul-Azha prayers, the applicant along with 07 others, being armed with hatchets, gun, cudgel, hatchet, lathi etc., attacked upon the complainant party in the street near the house of Gulsher Brohi, wherein the applicant/accused Mir Hassan alias Foji Brohi caused fire shot injury to PW Gulsher, hitting at his right leg, while other accused caused hatchet blows to PWs Illahi Bux, Abdul Razaque and Gulsher as well and then after resorting to aerial firing the accused persons fled away; hence, such FIR was lodged by the complainant on 15.06.2025.
3. Learned Counsel for the applicant submits that the FIR is delayed for about one week, for which no plausible explanation has been furnished by the prosecution; besides, there are cross cases between the parties as on same date complainant party of this case had also made assault upon the applicants side and to such effect FIR bearing Crime No.25/2025 was registered with same police station on 15.06.2025, in which injured PW Gulsher is shown nominated accused along with his sons. He further submits that role attributed to applicant is that he allegedly caused gunshot fire at PW Gulsher which landed at his right leg below the knee and injury so sustained by him has been declared by the MLO to be Jurh Ghayr Jaifah Hashimah carrying punishment of 05 years, thus does not exceed the limits of prohibitory clause of Section 497, Cr.P.C. He further submits that the applicant after furnishing surety before this Court has surrendered before the trial Court and has not misused the concession; hence, case against the applicant requires further enquiry, therefore, prays for grant of this application.
4. Learned Addl. P.G. appearing for the state submits that though the applicant is nominated in FIR with specific role of causing firearm injury to injured PW Gulsher; however, the injury so sustained by the injured PW carrying maximum punishment of 05 years; besides, there are cross cases between the parties; hence, which one was the aggressor and which one is aggressed upon is a question to be determined by the trial Court after recording evidence of the parties. Hence, he has no objection.
5. Mr. Nooruddin Mahessar, learned Counsel appearing on behalf of the complainant, opposes the application on the grounds that the applicant has been nominated in the FIR with specific role; besides, the FIR lodged by them against his client is mere an FIR as none from them was injured, though alleged. He, therefore, submits that though the injury shown by the complainant party in Crime No.25/2025 to Noor Khan is on non-vital part of the body, but that injury is indeed self-suffered; hence opposes the bail application.
6. Admittedly, the incident as is evident from the FIR had occurred on 07.06.2025, whereas FIR thereof was lodged on 15.06.2025 i.e. with the delay of about 08 days, though the distance between the place of incident and the police station is only 8/9 kilometers, but the prosecution has not furnished any plausible explanation for such an inordinate delay. The delay in criminal cases has always been held by the Superior Courts to be fatal for the prosecution, particularly at bail stage. As far role attributed to the applicant is that he allegedly caused fire shot injury to injured PW Gulsher who is also a nominated accused in counter FIR; besides, the injury attributed to applicant has been declared by the MLO to be Jurh Ghayr Jaifah Hashimah carrying maximum punishment of 05 years, thus, does not exceed the limits of prohibitory clause of Section 497, Cr.P.C. The parties are allegedly on loggerheads with each other over the issue of plot/path and both are claiming each other to be aggressor, which is yet to be determined by the trial Court after recording evidence of the parties. In the circumstances and in view of dicta laid by learned Apex Court in the case of Khalil Ahmed Soomro and others v. The State (PLD 2017 SC 730), the case against the applicant requires further enquiry within the meaning of subsection (2) of Section 497, Cr.P.C. Consequently, instant bail application is allowed. Interim pre-arrest bail already granted to the applicant is hereby confirmed on same terms and conditions.
7. The above observations are tentative in nature, which shall not prejudice the case of either party at trial.
JK/M-109/Sindh Bail confirmed