Wednesday 30 May 2012

Ipxi-Dixit of Police is not binding on courts

PLJ 2011 Cr.C.(Lahore) 802 (DB)

Present: Ch. Iftikhar Hussain and Muhammad Anwar-ul-Haq, JJ.

MUHAMMAD TUFAIL--Petitioner

versus

STATE & another--Respondents

Crl. Misc. No. 3493-B of 2010, decided on 20.4.2010.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Control of Narcotic Substances Act, 1997 S. 9(c)--Bail, grant of--Criminal administration of justice that ipxi-dixit of police was not binding upon Court--Case was not distinguishable from his co-accused, who has granted bail by High Court--Rule of consistency come into play--He was behind bars--Previously non-convict--Appropriate case to release him on bail--Bail was accepted.   [P. 803] A

Mr. Jafar Mehmood Malik, Advocate on behalf of Petitioner.

Chaudhry Jamshed Hussain, Deputy Prosecutor General for State/Respondent No. 1.

Complainant in person.

Date of hearing: 20.4.2010.

Order

Muhammad Tufail petitioner by way of the instant petition seeks post-arrest bail in case FIR No. 1185 registered under Section 9(c) of the CNSA, 1997 with Police Station, Factory Area, Lahore on 11.10.2009.

2.  The facts of the case were recorded by us in our earlier order dated 08.03.2010 in Crim. Misc. No. 2140-B of 2010 of his co-accused Muhammad Tariq. We, therefore, avoid to repeat the same here.

3.  After hearing the learned counsel for the parties and going through the record, we find that it is clear from the narration of the FIR that no one was apprehended from the car being used for the transportation of the narcotics. It is also clear from the same that there were many persons in the car, when it was intercepted by the police party at the picket point.

4.  There is no statement of any PW that he was found on the driving seat of that car. It is also every body's case that nothing was recovered from his direct personal possession.

5.  It may be mentioned here that the learned Deputy Prosecutor General has submitted before us that as per the case Diary No. 18, recorded on 11.02.2010, by Muhammad Asghar, SI/I.O. in the investigation, it has been found that in fact he was driving the car and was the associate of Farooq @ Farooqi, the main person in the crime. He has also admitted that such is the opinion of the said Investigating Officer. The learned Deputy Prosecutor General has read out before us the said case diary. It starts like this that during his "                                "
, such position has come to the surface. Such opinion of the Investigating Officer is open to question to be seen at trial.

6.  However, it would be relevant to mention here that it is well settled proposition in criminal administration of justice that ipxi-dixit of police is not binding upon Court.

7.  We, thus find that his case is not distinguishable from his co-accused Tariq, who has granted bail by this Court vide the aforesaid order. The rule of consistency, thus also comes into play in his case.

8.  He is stated to be behind the bars since 16.10.2009 and a previous non-convict. We, therefore, in such circumstances, find it an appropriate case to release him on bail. In this view of the matter, we accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs. 5,00,000/- (Rupees five hundred thousands only) with, two sureties each in the like amount to the satisfaction of the learned trial Court.

 (S.L.)  Bail accepted.


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