1. MUHAMMAD NASEEM, J.- Faqir Bakhsh complainant got recorded Crime Case No. 15 dated 13.2.1995 at 11.30 a.m. At Police Station Shah Wali. District Rajanpur under sections 334, 148, 149, 109 PPC with the allegation that on 13.2.1995 at 8,00. a.m. He alongwith his 'Bhanja' Khawand Bakhsh as well as his sons Noor Muhammad and Gandhi were travelling on a Coaster while going towards Rojhan.
2. Syed Momin Shah was also travelling therein. At about 9:10 a.m the coaster (vehicle) reached Maila Mor within the area of Mauza Shah Wali. Nawaz and Salami co-accused each armed with kalashnikov, Bakar, Rehmat Ullah, Gulsher, Jhangli petitioners-accused and Rehmat Ali co-accused each armed with Sota stopped the Coaster. Rehmat Ali, Nawaz and Rehmat Ullah boarded the Coaster. They dragged his son Gandhi from the Coaster on the road towards north at a distance of 25 Karams. Gulsher and Jhangli petitioners caught hold of Gandhi from his legs while Rehmat Ullah and Bakar petitioners caught hold of him from his arms. Rehmat Ali chopped of the nose and lip of Gandhi. Gulsher gave the sota blows on the legs of Gandhi. He (complainant), Momin Shah and Khawand Bakhsh intervened when Momin Shah was given the sota blows by Gulsher. On their alarm the accused persons made good their escape alongwith their weapons. It is narrated in the FIR that the occurrence took place at the instance of Hussain Bakhsh son of Allah Jiwaya. The cause of occurrence is said to be that about 10 months before Dadoo brother of Rehmat Ali accused was injured by Gandhi on the suspicion of the illicit relations of Dadoo with Lall Khatoon, The injured persons were medically examined and the medico legal reports are according to the recitals of the FIR. Section 337-F(i) PPC has been added bv the police. Th bail plea of the petitioners has been rejected by the lower Courts. Hence this petition with the same desire.
2. I have heard the learned counsel for the petitioners as well as the learned State counsel and gone through the record before me. The main contention of t he learned counsel for the petitioners is that no practical role of chopping of the nose and the lip of Gandhi injured has been attributed, to the petitioners and thus their involvement is a question of further inquiry. He added. That the occurrence took place on 13.2.1995 but tire complete or incomplete challan has not been submitted in terms of section 173 Cr.P.C, by \the police and on this ground as well the petitioners are entitled to be Admitted to bail. On the contrary learned State counsel canvassed that it is a case of grave nature which should not be taken lightly and that the chopping of the nose and the lip of Gandhi victim could not be effected without the practical assistance of the petitioners-accused. According to him the non- submission of the challan is not a ground for the admission of the accused to bail keeping in view the provisions of section 497 Cr.P.C. In my view the reasoning adopted by the learned counsel for he petitioners-accused need not be given t he weight . The same has failed to touch my sense of appreciation. As rightly pointed out by the learned State counsel the nose and the lip could not be chopped of by Rehmat Ali co-accused all alone especially when Gandhi victim is an adult person. He was to be over-powered by the co- accused of the principal accused namely Rehmat Ali and the co-accused are none else than the petitioners-accused. Gulsher and Jhangli petitioners caught hold of the legs while Rehmat Ullah and Bakar petitioners caught hold of the arms of Gandhi victim. The role attributed to them can easily be termed to be gruesome and grave in nature. They practically took part in the occurrence while they facilitated their co-accused Rehmat Ali who chopped of the nose and the lip of Gandhi victim. No doubt it is not a case of assassination of Gandhi victim. Rather it is a case worse than the assassination of Gandhi victim who has to lead his life while his nose and lip have been chopped of. His plight can well be imagined. His sentiments can well be projected by making a reference to the proverb that "only the wearer knows where the shoe pinches". The persons who must be looking at him must be sympathising with him. Thus the involvement of the petitioners- accused is neither that of further inquiry nor can be taken lightly in routine as desired by them. No doubt the complete challan or interim challan has not been submitted by the prosecution in terms of section 173 Cr.P.C. However.
3. In my confirmed view it is no ground for the admission of an accused to bail. It would be proper to refer to section 497 Cr.P.C, wherein the yard-stick(s) has been provided for the admission of an accused to bail. An accused whose involvement is a question of further inquiry', who is a female, a sick/infirm person and less than the age of I6 years is entitled to be admitted to bail in non- bailable offences. An accused involved in a case punishable with death is entitled to be admitted to bail in case the continuous period of his detention exceeds two years and the trial has not concluded. Further an accused involved in a case not punishable with death whose continuous period of detention has exceeded one year and the trial has not concluded is also entitled to be admitted to bail. However in the last mentioned two categories if the accused is desperate and hardened criminal he is not entitled to be admitted to bail due to the lapse of the aforesaid period of his continuous detention. I lie aforesaid amendment was incorporated in Section 497 Cr.P.C to meet such a situation i.e. Where there is lethargy' and negligence on the part of the prosecution to submit the challan in terms of section 173 Criminal Procedure Code and the accused has to suffer the pangs of his detention in the judicial lock-up. It is a sort of check upon the prosecution.
4. However, it. Would be proper to repeat that the non-submission of the challan has not been incorporated as a ground for bail in section 497 Cr.P.C. In bailable offences it is t he right of the accused to be admitted to bail as contemplated under section 496 Cr.P.C. I, therefore, hold that this ground is also not available to t be petitioners for the purpose of their admission to bail.