' MAZHAR IQBAL SIDHU, J.---Muhammad Ramzan, the juvenescent petitioner has sought for post- arrest bail in a case registered vide F.I.R. No,457 dated 19-10-2011 under section 302, P.P.C. At Police Station Qadirpur, District Jhang on the complaint of Manzoor Ahmad.
2. Tersely the prosecution case is that Mst. Sameena Bibi an underage (11/12 years) daughter of the complainant as being student of 7th class did not return to her house on 19-10-2011, on the same day at about 3-30 p.m., Abdul Razzaq, his brother telephonically conveyed the complainant about it whereupon Abdul Razzaq and Abdul Ghaffar brothers of the complainant started to look for her and when reached near the cotton crops field of Abdul Aziz Cheema in Killa No,1, Sq.No,51, saw that dead body of Mst. Sameena Bibi, the adolescent was lying under the `Shesham' tree whose throat was cut with sharp-edged weapon whereupon the complainant also arrived at there and saw the dead body of the deceased lying there in a pool of blood and near her dead body, her books were lying scattered. The incident was reported to the police. Some unknown ruffians in order to appease their lust committed her murder by cutting her throat.
' After the registration of the case, complainant made an addendum statement on 21-10-2011 involving the petitioner Muhammad Ramzan and accomplice Irfan.
3. Learned counsel for the petitioner contends that nobody saw the incident; accomplice Irfan has been declared innocent by the police; petitioner and Irfan are the real brothers who have been involved in the case on account of malevolence; evidence of last seen as well as extra-judicial confession through statement of Muhammad Arshad Imran and Abdul Sattar has been fabricated by the complainant in connivance with the police and false recovery of `Chhurri' as well as blood- stained Shalwar of the petitioner has been planted upon him. Further submits that petitioner was aged about 15 years, 6 months and 1 day at the time of occurrence, has been declared juvenile by the learned trial Court; since his arrest i,e, 7-12-2011 is incessantly behind the bars and is entitled to the grant of bail not only on merits but also on the ground of delay in final disposal of the case as envisaged by section 10(vii) of the Juvenile Justice System Ordinance, 2000 because more than one year has passed and learned trial Court has not yet finally decided the case of the petitioner and its temporization cannot be attributed to him; his case comes outside the exceptions contained in the last proviso of section ibid; therefore, has prayed for grant of bail.
4. Learned D.P.-G. Assisted by learned counsel for complainant has pedantically as well as exquisitely with deft has opposed submissions by arguing that non-mentioning of name of any accused persons even on the basis of suspicion in the F.I.R. Is the bona fide of the complainant and this fact alone cannot be considered as sufficient fact to dislodge the prosecution case as partway investigation sufficient incriminatory material has been collected against him. Further submits that during investigation on 21-10-2011 besides the supplementary statement of the complainant, I.O.
Examined Muhammad Arshad Imran and Abdul Sattar who got recorded their statements under section 161, Cr.P.C. To have seen the deceased and the petitioner along with his co-accused Irfan near the place of occurrence at the relevant time and then evidence of extra judicial confession was also brought on record on the same day. Further adds that petitioner was arrested on 7-12- 2011, he while in police custody on 11-12-2011 got recovered crime weapon, the Chhurri (blood imbrued), his own blood-stained Shalwar worn by him at the time of occurrence and the police after thorough probe has declared him guilty in this case and the offence with which he has been indicted falls within the prohibitory clause of section 497, Cr.P.C. Further adds that deceased was a student of 7th class and was aged about 11/12 years, on her way back to her house, after the school time, she was slaughtered by the petitioner and even he being juvenile cannot claim grant of bail as matter of right either on merits or on the ground of delay in final disposal of the case because his case falls within the exceptions contained in sections 7 to 10 of the Juvenile Justice System Ordinance, 2000 as the case against him is not only brutal one but also sensational in character as well as shocking to the public morality and thus has prayed for dismissal of instant application.
5. Arguments heard. Record perused.
6. It has been noticed that the minor Mst. Sameena Bibi, the benighted deceased was a student of 7th class and was aged about 11/12 years, when did not come back to her house after school hours on 19-10-2011, the inmates of the house became worried. Abdul Razzaq and Abdul Ghaffar brothers of the complainant started to search her and at about 3-30 p.m., Abdul Razzaq telephonically intimated the complainant that dead body of Mst. Sameena Bibi was lying under the `Shesham' tree in the cotton crops field in Killa No,1 of Square No,51 belonging to Abdul Aziz Cheema and others in the area of Haji Turbat Shah. The complainant also reached there and saw the dead body of Mst. Sameena in a pool of blood. Her school books were also found scattered nearby. Case was registered against unacquainted incontinents/rakishes. During investigation on 21-10-2011, the complainant made his supplementary statement by implicating Ramzan petitioner and Irfan accomplice, on the same day Muhammad Arshad Imran and Abdul Sattar P.Ws. Appeared before I.O. And got recorded their statements to the effect that on the day of incident, they saw the deceased and the petitioner along with his co-accused near the place of occurrence and thereafter deceased was not seen alive. Evidence of extra judicial confession has also been brought on record against the petitioner. After the collection of this evidence, petitioner was arrested in the case on 7-12-2011 and he while in police custody on 11-12-2011 got recovered blood stained Chhuri, the weapon of offence and his own blood imbrued Shalwar, in this way, on the conclusion of investigation, petitioner has been found guilty in the case. As per birth certificate, his date of birth is 18-11-1996, if it is reckoned at the time of occurrence, the petitioner has been found, to be aged about 15 years, 6 months and 1 day. His medical examination for the determination of age was also performed on the order of learned trial Court, he was examined for the same purpose on 2-4-2012, resultantly, his age was declared by the Medical Board unanimously between 15 to 17 years at the time of examination. He was then declared juvenescent by the learned trial Court. His separate challan was prepared and now is pending before learned trial Court. He, notwithstanding, as being a juvenile cannot claim the bail as a matter of right on the ground of delay in final disposal of his case because the provisions of section 10 of Juvenile Justice System Ordinance, 2000 provides discretion to the court that in some exceptional circumstances, bail can be refused to a juvenile. For better understanding, it is apposite to mention relevant part of the said section:--
10. Arrest and bail.
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(7) Notwithstanding anything contained in the Code and except where a juvenile Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, a child who, for commission been detained, shall be released on bail,----
(a) If being accused of an offence punishable with death has been detained for such an offence for a continuous period exceeding one year and whose trial for such an offence has not been concluded;
(b) If being accused of any offence punishable for imprisonment for life has been detained for such an offence for a continuous period exceeding six months and whose trial for such offence has not concluded; or
(c) Who, being accused of any offence not punishable with death, or imprisonment for life, has been detained for such an offence for a continuous period exceeding four months and whose trial for such an offence has not concluded: Provided that where a child of the age of fifteen years or above is arrested, the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in its opinion is serious, heinous, gruesome, brutal, sensational in character or shocking to the public morality or he is a previous convict of an offence punishable with death or imprisonment for life.
7. Before the instant incident, no afore-thought has been brought on record on the part of the complainant for false involvement of the petitioner as never ever any acerbity has been found to have taken place between the parties. Non-mentioning of the name of any culprits in F.I.R. Shows the bona fide of the complainant that he did not desire/want to involve any innocent person. The object of the investigation is to collect the evidence and duty casts upon the Investigating Officer is to dig out the truth of the matter and should not prematurely make up his mind.
Section 4(1) of the Code of Criminal Procedure, 1898 defines investigation as under:--
(L) "Investigation". "Investigation" included all the proceedings under the Code for the collection of evidence conducted by a police- officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
Whereas in Chapter XXV of the Police Rules, 1934, 25.1 provides power to investigate whereas 25.2 of the Rules ibid confers powers to Investigating Officer:--
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(3) It is the duty of an Investigating Officer to find out the truth of the matter under investigation.
His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person.
P.Ws. Appearing during investigation, undoubtedly, are related to the deceased as well as complainant but at the same time, record is silent that ever earlier any enmity or grudge or grouse had existed with them against the petitioner to become false witnesses. Evidence of last seen, extra-judicial confession, recovery of blood-stained Shalwar of the petitioner and recovery of Chhuri, the weapon of offence are the sufficient pieces to prima facie connect the petitioner with the commission of crime. Indubitably, more than one year has elapsed after being lodged the petitioner behind the bars and the case has not yet been finally decided by the learned trial Court but in the circumstances of the case, petitioner cannot claim bail as matter of right. His case squarely and eminently comes within the preternatural circumstances mentioned in the last proviso of section 10 of the Juvenile Justice System Ordinance, 2000. The act of the petitioner, in the opinion of the court, appears to be heinous, gruesome, brutal, sensational in character and shocking to the morality because the time of occurrence is immediate after the closure of school hours and the deceased was on way back to her house. The manner with which she was murdered is ruthless as depicted by the post mortem report of the deceased as injury No,1 on her body shows an incised wound 11 x 12 Cm into spinal cord, cut in front of neck, upper back, trachea, carotid vessels were cut and vertebrae were also injured and two other injuries have also been observed by the doctor; loathsome: as the act of the petitioner sordid one and is sensational in character because of message through instant incident has been spread in the vicinity and the parents/guardian of the female students are frightened to send their children alone in the school; shocking because of the deceased was non suijuris (nonaged) whereas the petitioner was aged about 15 to 16 years at the time of occurrence. In absence of any wrath on the I part of the complainant, chances of false implication of the petitioner in the case are ruled out.
8. For what has been discussed above, its motif is that ex-arbitrio judicious is exercised in dismissing instant bail application, the same is dismissed accordingly.
9. Before parting with this order, it is prominently mentioned that the observations mentioned above are of tentative in nature and the learned trial Court shall not be prejudiced by the same while deciding the case finally.