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Criminal Miscellaneous Applications Nos. 518/85 (Hyd.) and 1519 of 1985 (Kar.), decided on 2nd March, 1986.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302/307/34 Bail, Cancellation of‑‑Ocular version not supported by medical evidence F.I.R. lodged after 5 hours of incident‑‑No motive for murderous assault given in F.I.R.---Grounds agitated for cancellation of bail already considered at time of granting bail----Question of vicarious liability would differ from case to case depending on circumstances No substantial ground for recalling earlier order existing, petition for cancellation, of bail was dismissed.

Abdul Rasool Agha for Applicant.

A.Q. Halepota for Respondent No.1.

Abdul Ghafoor Mangi Asstt. A.-G for the State.

Applicant Muhammad Saleh has filed this application under section 497(5), Cr.P.C. for cancellation of bail granted to the respondent Abdullah in Crime No. 54/85 under sections 307 and 302 read with section 34, P.P.C. of P.S. Hosri, in District Hyderabad, vide order, dated 22‑8‑1985 in Criminal Bail A. No. 1008/85. The learned counsel for the applicant has urged that the respondent Abdullah was granted bail on the grounds that the death of the deceased Gul Muhammad as directly attributed to co‑accused Ghulam Mustafa and that the part to the respondent Abdullah was that of causing a simple injury by firing at the deceased from a gun, and thirdly that there was a counter report in respect of the incident wherein it was alleged that co‑accused Ghulam Mustafa had been attacked by the applicant party and la, had fired from his gun in self‑defence. According to the learned counsel, the allegations are that the respondent Abdullah had played the leading role and opened firing at the deceased, and Ghulam Mustafa made firing at the deceased hitting him on his head and at is s clear case of vicarious liability of the respondent Abdullah and ire does not deserve the concession of bail. Reliance has been placed on the cases reported in 1981 S C M R 1092; 1985 P Cr. L J 1435 and 1985 S C M R 619 The learned counsel has also relied upon a case Mukhtar Ali v, The, State, reported in 1985 P Cr. L J 2325 to urge that a person planning to murder a person is equally responsible for committing the offence of murder even if the injury attributed to him did not prove fatal. Reference has also been made to the disposal of the counter case which is said to have been disposed of as a false case. A certified copy of the summary order issued in respect of that case by the Sub‑Divisional magistrate, Hyderabad has been filed.

The application has been resisted on behalf of the respondent Abdullah. The learned counsel for him has contended that post‑mortem report reveals that the deceased Gul Muhammad died due to the fire arm injury sustained by him on his head and the only other injury on him on his right ring finger was found to be simple. He has pointed that the injury on the head of the deceased has been attributed to Ghulam Mustafa, while the injury on the finger of the deceased has been attributed to the respondent Abdullah who has been granted bail. According to him, no motive has been disclosed and it is yet to be seen whether it was intentional assault on the deceased as to bring the case against the respondent within the four coroners of vicarious liability. He has placed reliance on a case reported in 1984 S C M R 530. The learned, counsel has also urged that even if the counter case has been disposed of by the Police as false one, the facts stated in the counter F.I. R. furnish the earliest counter‑version to be considered.

The learned Asstt. A.‑G. has not supported this application for cancellation of bail.

The alleged incident took place on 26‑6‑1985, at about 8‑00 a.m. Its report was lodged at Hosri Police Station at 1‑10 p.m. The distance between the Wardat and Police Station has shown in the counter F.I.R. was 6 miles. It is alleged in the F.I.R. that the complainant Muhammad Saleh, Gul Muhammad deceased, Abdul Karim and Dodo were going towards Hyderabad when they were waylaid by Abdullah (respondent), Ghulam Mustafa and Ishaque, all the three armed with guns, and Abdullah initiated firing at the deceased Gul Muhammad and a shot fired by him hit Gul Muhammad on his right hand, and Ishaque also made firing at Gul Muhammad and the shot fired by him hit him on his right thigh, and then Ghulam Mustafa made firing at Gul Muhammad and the shot hit him on his head. The post‑mortem report indicates that the deceased had sustained two fire‑arm injuries, one on his head, and the other on one of the fingers of his right hand, and the injury caused on the head had proved fatal. There is no mention in the post‑mortem notes whether there was any injury on the right thigh of the deceased. The counter‑version of the incident put forth by one Habibullah in the report lodged at the same Police Station bit earlier is that Ghulam Mustafa, one of the co‑accused, was challenged by Ghulam Hussain, Abdul Karim, Gul Muhammad deceased, and Rab Dino that he would not be spared and he i.e. Ghulam Mustafa fired a gun shot at them hitting Gul Muhammad deceased. The ocular version of the incident as given in the report of this case is not supported by the medical evidence as regards the injury caused to the deceased on his thigh. The F.LR. was lodged after about 5 hours of the incident, when the distance between Wardat and Police Station was about 6 miles. There is no mention in the F.I. R. that what was the reason for making murderous assault on the deceased. The cases cited by the learned counsel for the applicant relate to the question of vicarious liability which varies from case to case depending upon the circumstances of each case. In the case reported in 1985 P Cr. L J 2325, bail was refused on the ground that there was motive and planning for committing murder but in this case nothing is mentioned about motive behind the murder. The grounds agitated by the learned counsel for the applicant were considered at the time the bail was granted to the respondent Abdullah, vide order, dated 22‑8‑1985. There is no substantial ground for recalling that order and the application is dismissed.

S.A. Application dismissed.

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