1. ' AQEEL AHMED ABBASI, J.--- This bail application is filed against the order passed by 'Ind Additional Sessions Judge, Thatta. In Sessions Case No,156 of 2009, arising out of F.I.R. No,90 of 2009 under sections 489-B and 489-C, P.P.C., registered at Police Station Gharo. The said bail application was dismissed vide order, dated 8-7-2009.
2. ' The brief facts of the case are that one Muhammad Saleem lodged F.I.R. With Police Station Gharo at 2100 hours. The contents of the said F.I.R. Are as under:- "The complaint of the complainant is that he has a shop of Wrist Watches and Mobile Phones namely Shamsi Mobile Shop, situated at Gharo No,2 and the said shop is run by himself and his servant namely Abdul Jabbar Rajput, and today dated 30-5-2009, the complainant and his servant above-named were sitting at his shop and on this at about 7-1/2 O'Clok three persons came at the shop who told him that they need mobile and the complainant given them I.-G. 195 Mobile for check-up, who enquired the price after check it and the complainant replied the cost of mobile is Rs,6,300 but the sale was held at Rs,6,200 and one of them took out six notes of Rs,1,000 each from his pocket and at the time of counting the complaint felt that the notes of Pakistani currency were forged and he said that he could not understood and may be all forged and those persons replied that they had only these notes and said that they are in hurry and due to my suspect that the notes are forged the complainant informed at police station on telephone and A.S.-I. Azam Shah along with police reached at, his shop and complainant produced the notes bearing Sr. No,Y-3461701 six notes of Rs,1,000 each and at that time all the above said three persons tried to run away and the above said A.S.-I. Along with police party surrounded them and arrested them and the above said A.S.-I. After their arrest enquired about their names, father's name and caste and residence and in our presence made their personal search and one of them disclosed his name Danish son of Muhammad Aslam, Gabol by caste, resident of Gizri, H. No,367, Karachi and recovered 8 notes of Pakistani currency forged and correct notes and different notes of Rs,700 were recovered and another person disclosed his name as Noor Muhammad son of Thohar by caste Gabol resident of Hyderi Karachi and recovered 16 currency notes forged and correct of Rs,1,000 each and different notes of Rs,200 from his pocket and the third one disclosed his name as Abdul Ghafoor son of Gul Muhammad Gabol resident of Ibrahim Hyderi, Karachi and recovered 14 notes of Rs,1,000 each forged and correct and different notes of Rs,1,100 and police took it into their possession and A.S.-I. Prepared such Mushirnama on the spot before Mushir Abdul Jabbar Rajput and Khalil-ur-Rehman and went along with police at police station and made complaint that the above stated accused persons used forged notes instead of genuine notes of Pakistan currency and requested for investigation.
3. Details of recovered notes
(1) The notes produced by complainant six notes of Rs,1,000 each Sr. No,Y-3461701.
(2) Six notes of Rs,1,000 each of different Serial Nos. And one Number M-6022103 recovered from accused Danish Gabol and one note of Rs,500 and two notes of Rs,100 each total notes Rs,8,700.
(3) The recovered notes from accused Noor Muhammad of same No,Y-3461702, 11 notes of Rs,1,000 each and 5 notes of different Serial Nos. Of Rs,1,000 each and one note of Rs,500 and 7 notes of Rs,100 each total Rs,17,200.
(4) Recovered notes from accused Abdul Ghafoor of same Serial No,Y-3461703, 8 notes of Rs,1,000 each 6 notes of different Serial Nos. Of Rs,1,000 each and one note of Rs,500 and 6 notes' of Rs,100 each total Rs,5,100 and total Rs,47,000."
4. ' After investigation, challan has been submitted and the accused is facing trial before the learned trial Court. Learned counsel for the applicant contended that the applicant is student of Class IX and is also of tender age and in this regard he has produced the birth certificate issued by Municipal Committee, Karachi South bearing No,31509 dated 25-1-1993 according to which the date of birth of accused Muhammad Danish son of Muhammad Aslam Gabol is mentioned as 10-1- 1993. He further submitted that the learned trial Court while rejecting the bail did not consider this aspect of the matter hence seriously erred in law and fact by holding that "the claim of applicant/accused of tender age of 16 years appears to be frivolous".
5. ' However, he has also argued this bail application on the merits and states that applicant has been falsely implicated in this case due to enmity and political rivalry between the complainant and the father of the accused. He further contends that the prosecution has not been able to make out the case attracting the provision of sections 489-B and 489-C, P.P.C. As the F.I.R. Does not disclose as to from whom the actual recovery of the alleged forged currency notes was made. He has pointed out that admittedly the alleged forged notes bearing Sr.No,Y-3461703 i.e. Six notes of Rs,1,000 each were recovered from the complainant, whereas, the recovery which has been shown from the accused only refers to recovery of six notes of Rs,1,000 each of different serial numbers, one note Serial No,M-6022103, one note of Rs,500 and two notes of Rs,100, whereas, it has been mentioned as to whether how many notes were allegedly forged one. He has also referred to the contents of challan whereby the recovery of only two notes have been shown. According to him this is case of further inquiry as the prosecution has not been able to establish its case free from doubts, therefore, according to the learned counsel the accused is entitled to the concession of bail by this Court. He placed reliance on the following reported cases in support of his arguments.
(1) 2003 PCr.LJ 964, (2) 1980 SCM R 708, (3) 1985 PCr.LJ 1546, (4) 1984 M LD 1411, (5) 1982 1984 PCr.LJ 436.
6. ' Conversely, the learned Assistant Prosecutor-General, Sindh opposes the grant of bail and states that since the accused is charged under section 489-B which falls within the prohibitory clause, whereas, section 489-C also, though the same does not fall within the prohibitory clause, the nature of crime is likely to affect the society, therefore, accused is not entitled for any concession by this Court.
7. Heard both the learned counsel and perused the record. Admittedly, as per prosecution case the forged currency has been shown recovered from the accused/applicant but the F.I.R. Is silent as to who has actually delivered forged currency to the complainant. Under the circumstances, ingredients of section 489-B, P.P.C. Appears to be missing and application of section 489-B, P.P.C. In the case is doubtful and requires further enquiry into the matter, whereas, section 489-C is bailable offence and does not fall within the prohibitory clause.
8. ' In view of the above facts. I am inclined to grant bail to the applicant in the sum of Rs,1,00,000 with P.R. Bond in the like amount to the satisfaction of the learned trial Court. However, if the accused misuses the concession of bail, the trial Court shall be at liberty to take action as per law. The observations made are tentative in nature and the trial Court shall not be prejudiced by any such observations.