' 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.