1. Both the applications have been filed under the provisions of section 497(5) read with section 498 and 561-A, Cr.P.C. Muhammad Riaz, the applicant in both the applications, is complainant in crime No. 53/ 85 of P.S.S.I.T.E., District Hyderabad, registered on 1-6-1985 at 11.55 p.m. The respondents in both the applications, namely Raja Abdul Munaf, Zulfiqar Ali @ Karo and Zahid Pervez are accused in the case, alongwith two others by names Khursheed @ Punno and Inayat Baig.
2. Respondent Raja Abdul Munaf in Criminal Miscellaneous No. 75/86 was granted bail by this Court in Criminal Bail A. No. 1368/85 by order, dated 4-11-1985. The respondents Zulfiqar Ali @. Karo and Zahid. Pervez were granted bail by an Additional Sessions Judge IV, Hyderabad by order, dated 1- 12-1985. Bail granted to the three respondents named above is sought to be cancelled under the two applications under section 497(5), Cr.P.C.
3. The incident is alleged to have taken place within the premises of Mushtaq Mills, S.I.T.E. Area, Hyderabad on 1-6-1985 at about 11.00 p.m. Both the parties in the case were employees in the Mills.
4. Prosecution case, briefly stated, is that there had been a quarrel between the two parties involved in the incident on the previous day. On the day of the incident, the complainant Muhammad Riaz, who is the applicant herein, was standing in front of Time Keeping Office of the Mills at about 10.45 p.m. When the respondents Abdul Munaf, Zulfiqar Ali and Zahid Pervez and co-accused Khurshed Beig @ Punno and Inayat Baig went there armed with Chhuris and an iron rod. By that time; Muhammad Shabbir, Muhammad Mansha, Mazhar lqbal, Muneer Ahmed, Tariq alias Chacha, who were workers in the Mills, also happened to reach there. It is alleged that the respondent Abdul Munaf instigated his companions, whereupon Khurshed Baig @ Punno struck Muhammad Shabbir on his left nipple by means of a Chhuri he was armed with; Inayat Baig struck Mazhar lqbal on his abdomen by means of a Chhuri he was carrying; Zahid Pervez struck Muneer Ahmed on his left arm by means of a Chhuri he had; Zulfiqar struck Mansha on his left thigh by means of a Chhuri he was carrying; and Abdul Munaf gave blows to all the said victims by means of iron rod he was armed with. This incident was witnessed by some of the workers in the Mills by names Talib, Sabir and others. In the meantime, one Villayat Ali, who was Incharge Production in the Mills, reached there. He was given facts of the incident. During the course of incident, Khurshed Baig @ Punno also sustained injuries. All the injured were removed to Civil Hospital, Hyderabad by Villayat Ali.
5. Muhammad Shabbir injured could not withstand the injury caused to him and he died before he could reach the hospital. Muhammad Riaz rushed to P.S. S.I.T.E., and lodged report there. The crime was registered in respect of commission of offence punishable under sections 302, 307, 324, 323 read with section 149, P.P.C. During the course of investigation, the respondents and the co- accused were apprehended.
6. A bail application on behalf of all the five accused in the case was filed in the Sessions Court, Hyderabad. It was heard by the IVth Additional Sessions Judge, Hyderabad and he rejected it by order, dated 5-8-1985. Another bail application filed in the Sessions Court on behalf of respondent Abdul Munaf also was dismissed by the same Additional Sessions Judge, by order, dated 27-10- 1985. Thereafter, Bail Application No. 1368/85 was filed in this Court on behalf of respondent Abdul Munaf and he was granted bail vide order, dated 4-11-1885 which is sought to be recalled under Criminal Miscellaneous Application No. 75/86. Bail application was repeated in the Sessions Court on behalf of the respondents Zulfiqar Ali @ Karo and Zahid Pervez and they were granted bail by the same Additional Sessions Judge IV, Hyderabad by order, dated 1-12-1985, which is sought to be set aside under Criminal Miscellaneous Appeal No. 76/86.
7. The learned counsel for the applicant has urged that the respondent Abdul Munaf was granted bail on the consideration that no overt act was attributed to him but the fact is not correct as there is specific mention in the F.I.R: that he had struck the complainant party by means of an Iron Rod and that fact is supported by the medical evidence which shows that Mazhar Iqbal had sustained two injuries, out of which one had been caused by means of a blunt-weapon which could be Iron Rod.
8. He has further urged that another circumstance considered in granting bail to the respondent Abdul Munaf was that two of the accused had sustained injuries but no counter-report was lodged.
9. According to him, on excluding these two grounds from consideration at the bail stage, there is a prima facie case against the respondent Abdul Munaf of his involvement in commission of crime by virtue of vicarious liability and the bail granted to him -may be cancelled in view of the principle of further enquiry contained in section 497, Cr.P.C. Enunciated by the Supreme Court in a case reported in PLD 1985 SC 182. As regards the respondent Zulfiqar @ Karo and Zahid Pervez, his contention is that they have been attributed specific part of causing injuries to Mansha and Muneer respectively and that fact gets support from the medical evidence that they had actually sustained injuries caused by means of a weapon like a Chhuri. According to him, these two respondents have been granted bail on the basis of the order of this Court of grant of bail to the respondent Abdul Munaf and if that order is recalled. The bail granted to them may also be cancelled. The contention of the learned counsel in substance is that the respondents are liable to have committed an offence punishable under section 302, P.P.C. Under the principle of vicarious liability.
10. The learned counsel for the respondents has contended that the facts alleged do not bear out that the respondents and the co-accused had made premeditated attack on the complainant party and it is a case of individual liability. He has further contended that the injuries attributed to the respondents were simple in nature and the fatal injury caused to the deceased stands attributed to the co-accused Khurshed @ Punno. His further contention is that it is mentioned in the F.I.R. That there had been fight between two parties and three persons had suffered violence on the complainant side and two persons were injured on the respondents/accused side. He has also contended that the medical evidence does not fully conform to the prosecution case as there is no medical evidence to confirm that Muneer was actually caused injuries by Zahid Pervez as alleged in the F.I.R. He has produced a certified copy of 164, Cr.P.C. Statement of injured Mazhar Iqbal to point out that he has not alleged that he was struck by Abdul Munaf respondent. He has made reference to an order, dated 2-2-1986 in Criminal Bail Appeal No. 43/86 in this Court whereby bail was granted to the co-accused Inayat Baig who is alleged to have caused grievous injury by means of a Chhuri to Mazhar Iqbal. He has relied upon an order of the Supreme Court in a case of Muhammad Hanif v. Muhammad Jahangir and others 1984 SCMR 530 where bail was granted in a murder case to an accused who was alleged to have caused simple injury to the deceased. He has also relied upon a case Muhammad Nazir v. The State 1984 SCMR 206 where bail was granted by the Supreme Court to the accused in a murder case who were not attributed fatal blows to the deceased. He has also made reference to Bail Application No. 77/86 (Hyderabad) wherein bail was granted by order, dated 19-2-1986, to an accused in a murder case of identical nature.
11. Learned Additional Advocate-General has not supported the applications. It appears from the facts briefly stated above that there was fight between the two parties within the Mills premises and three persons suffered violence on the complainant side and one of those victims had misfortune of losing his life while two persons suffered violence on the respondents side. The medical certificates available with the Police papers indicate that the deceased Muhammad Shabbir had sustained one injury at the site of his left nipple caused by means of a sharp cutting weapon resulting in his death and two injuries were sustained by Mazhar Iqbal, out of which one was a stab wound, grievous in nature, caused by means of a sharp cutting weapon, and another one being a lacerated wound caused by means of blunt weapon, and the third person by name Mansha had sustained one simple injury caused by means of a sharp cutting weapon on his left thigh. There are also injury certificates in respect of co-accused Khurshed @ Punno and Zulfiqar, each having received three injuries each, out of which one injury on Khurshed @ Punno, and two injuries on Zulfiqar were caused by means of a sharp cutting weapon. Of course, no counter case was 'filed but the factum of injuries sustained by two of the accused named above was disclosed by the complainant in the F.I.R. In such circumstances, the question of vicarious liability of each of the accused needs further enquiry and the bail granted to the respondent Abdul Munaf by this Court and to the respondent Zulfiqar and Zahid Pervez by the learned IVth Additional Sessions Judge, Hyderabad in the light of the order made by this Court in granting bail to the respondent Abdul Munaf is not liable to be cancelled. Both the criminal applications are, accordingly, dismissed.
12. The learned counsel for the applicant requests that observations may be made that this order would not stand in the way of the applicant in making an application for cancellation of bail to the respondents if such circumstances appear after recording evidence of the witnesses. In fact, no such observations are necessary as fresh application can be made if there are fresh grounds for making such an application.