2006 PLP 1221 (YLR)

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.

3. 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.

4. 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.

5. 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 A 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. H.B.T./Q-27/L???????????????????????????????????????????????????????????????????????????????????? Bail confirmed.