ASHIQ ALI vs MUHAMMAD YOUSUF MAGSI and another
This criminal matter concerns an application seeking the cancellation of bail granted to the respondent, who was accused of committing an offence under Section 302 of the Pakistan Penal Code 1860. The prosecution alleged that the respondent caused the death of the deceased by inflicting kicks and fist blows following a dispute over the cutting of a tree. The core legal question was whether the trial court erred in granting bail given the nature of the allegations and the evidence presented. The High Court, upon reviewing the record, noted significant contradictions in the statements of prosecution witnesses and observed that the respondent, despite possessing a sharp cutting weapon at the time of the incident, did not utilize it, suggesting a lack of intent to cause death. Furthermore, the court highlighted that the deceased suffered from pre-existing medical conditions, rendering the application of Section 302, Pakistan Penal Code 1860, a matter of further inquiry. Consequently, the court held that the bail order suffered from no infirmity and dismissed the application for cancellation, affirming that bail is appropriate when the case requires further investigation.
- Does the absence of the use of a weapon by an accused, despite having one available, negate the intent to commit murder for the purpose of bail?
- Can bail be cancelled when the prosecution's case relies on contradictory witness statements?
- Is a case subject to further inquiry when the deceased had pre-existing medical conditions that might have contributed to death?
- Does the failure of the prosecution to recover a weapon allegedly used in an incident justify the grant of bail?
- Section 302, Pakistan Penal Code 1860
ORDER
' Applicant has sought cancellation of the bail granted to respondent No,1 Muhammad Yousuf Magsi in Crime No,12 of 2002 registered with police station under section 302, P.P.C. Vide impugned order dated 29-1-2004 passed by Dr. Qamar Din Bohra, learned Sessions Judge, Thatta.
' In nutshell, allegation against respondent No,1, as per prosecution case, is that on 29-11-2003 he grappled with Aacher Magsi, father of the applicant/complainant, pushed him down and gave kicks and fists blows when he was asked by deceased not to cut the tree. It is alleged that as a consequence of kicks and fists blows deceased expired.
' Mr. Suleman Junejo learned counsel for the applicant/ complainant contended that the respondent No,1 is guilty of causing death of deceased, an old man, by giving him kicks and fists blows, therefore, he is not entitled to the grant of bail, which has been illegally allowed under the impugned order. He further contended that after challan of the case no progress was made by the prosecution, therefore, learned trial Court ought to have abstained from granting bail to the respondent No,1, at premature stage.
' Mr. Iqbal Ahmed Solangi, Advocate for respondent No 1 . Argued that the incident had taken place at the spur of moment and the respondent No,1 in the alleged scuffle had only given a push to the deceased and abstained from using the sharp cutting weapon with whom it was alleged that he was seen cutting the tree and such restraint on the part of respondent No,1 clearly indicated that he had no intention to cause the death of the deceased. He further argued that there was conflict between the statements of the complainant and P.W. Kamal, another son of deceased inasmuch as the complainant alleged that his father was fallen down by the respondent No,1 and gave him kicks and fists blows while his brother P.W. Kamal stated that complainant had informed him that his father was only pushed by respondent No,1 on which he fell down and expired. Learned counsel for the respondent No,1 viewed that admitted position is that the deceased had some ailment/weakness inside his body and in the above circumstances, allegation against the respondent No,1 to have committed an offence falling under section 302, P.P.C. Is subject to further inquiry.
' Mr. Sohail Jabbar, learned State Counsel has supported the above application and stated that the post-mortem report showed the cause of death as Neuro Ranic Shock resulting due to injury over the left testicle of the deceased.
' I have given my due attention to the submissions of learned counsel for the parties and with their assistance I have gone through the impugned order which shows that the medical certificate and the admission on the part of P.W. Kamal son of the deceased reflected that he was kidney patient and that there was also contradiction in the statements of allegations of brother P.W. Kamal as pointed out by Mr. Solangi, learned counsel for the respondent No,
1. Admittedly, the scuffle, as per prosecution story, ensued when the deceased found the respondent No,1 cutting the tree which could not have been possible without any sharp cutting equipment/weapon. Had there been an intention on the part of respondent No,1 to cause the death of the deceased he could have used that sharp cutting weapon. No such allegation has, however, been raised against the respondent No,
1. The statement of complainant that respondent No,1 had caused kicks and fists blows to the applicant's father whereafter he fell down, is apparently subject to further inquiry as his other brother has n of supported him in his evidence. Learned counsel for applicant and learned State Counsel also failed to confirm if any sharp cutting weapon/equipment with which the respondent No,1 was seen cutting the tree was recovered.
' In the circumstances, I do not see that the impugned order is suffered from any infirmity consequently. I do not find any merit in this application and dismiss the same.