QAMMAR NASEER alias BAITU MASIH and otherss vs THE STATE
This matter concerns a petition for pre-arrest bail filed by four accused individuals in a criminal case registered under Section 302 and Section 34 of the Pakistan Penal Code 1860, following an incident involving a dispute over football playing. The core legal question was whether the petitioners were entitled to pre-arrest bail given the absence of visible injuries on the deceased and the lack of evidence linking the alleged assault to the death. The Court observed that the post-mortem report explicitly stated no injuries were found on the deceased's body, and the cause of death remained undetermined pending chemical and bacteriological analysis. Consequently, the Court held that the prosecution failed to establish a prima facie case of homicide against the petitioners. The Court confirmed the interim bail, emphasizing that personal liberty cannot be curtailed based on mere allegations without supporting evidence. The principle laid down is that where the medical evidence contradicts the allegation of a homicidal death, the accused is entitled to the concession of pre-arrest bail, subject to the prosecution's liberty to seek cancellation if incriminating evidence emerges later.
- Is an accused entitled to pre-arrest bail when the post-mortem report shows no injuries on the deceased?
- Can bail be granted when the cause of death remains undetermined pending chemical and bacteriological analysis?
- Does the absence of visible injury on the deceased negate the prima facie case for an offence under Section 302 of the Pakistan Penal Code 1860?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' M. A. SHAHID SIDDQUI, J.---This order shall also dispose of Criminal Miscellaneous No.2639-B of 2005.
2. Qamar Naseer alias Baitu Masih, his brother Edward Naseer alias Bunti, Akbar Khan and his son Adil Akbar alias Raja have applied for bail before arrest in a case registered at Police Station, Nishter Colony, District Lahore, under section 302, P.P.C. Read with section 34, P.P.C. Vide F.I.R. No.95, dated 21-2-2005.According to the F.I.R. Baitu Masih, Banti Masih, Channi Masih, Raja Masih and few others were playing football on the roof-top of their house on 20-2-2005 at about 11-00 a.m. The football dropped into the house of Latif Masih complainant, who returned it to the said accused who after a shortwhile again started playing on the roof-top. The complainant tried to restrain them from playing football on the roof-top upon which the accused get down while hurling abuses to the complainant. At about 11-00 a.m. Latif Masih complainant, Maqsood Masih, Hameed and Maqbool Masih were standing in the lane in front of their house when Baitu Masih, Banti Masih, Raja Masih and Akbar Masih arrived there. Akbar Masih shouted that Maqsood Masih would not escape alive. Baitu Masih allegedly caused injury with his Churri on the head of Hameed Masih P.W. Banti Masih hurled a brick on Maqbool Masih hitting on his nose. Raja and Akbar accused caused hurt to Maqsood with bricks, fists and dandas on different parts of his body. Hameed Masih was taken to the General Hospital, Lahore, but Maqsood Masih was not taken anywhere because there was no visible injury on his body. However he was being taken to the hospital during night when he died on the way.
3. The only argument advanced on behalf of the learned counsel for the petitioners is that Maqsood Masih had not sustained any injury during the occurrence and that there is no evidence to show that his death was due to any injury attributed to the petitioners, as such, the offence under section 302, P.P.C. Is not made out.
4. I have considered the arguments advanced by the learned counsel for the petitioner. The dead- body of Maqsood Masih was subjected to post-mortem examination on 21-2-2005 at 8-30 p.m.
According to the post-mortem examination report Maqsood Masih had died on 21-2-2005 at 9-45 a.m. No injury was found on his body. Viscera was sent to the Office of Chemical Examiner and also to the Bacteriologist to the Government of Punjab for detection of poison/drug or disease. The cause of death was to be given after the receipt of the reports from the said Offices. There is absolutely nothing on the record to show that the death of Maqsood Masih was homicidal. The liberty of the petitioners cannot be allowed to be curtailed on mere allegation. I, therefore, allow both these petitions and confirm the interim bail granted earlier. The prosecution would, however, be at liberty to move for the cancellation of bail if some incriminating material is collected during further investigation of the case.
Cited by 3 cases
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- Malik Sajid Ismaeel, etc. vs The State, etc. K.L.R. 2016 Criminal Cases 162
- Malik SAJID ISMAEEL and others vs The STATE and others 2017 MLD 446