1. ' MAQBOOL AHMED AWAN, J.--- I intend to dispose of the two Criminal Appeals viz. 250 of 2006 filed by Muhammad Aslam and 259 of 2006 filed by Muhammad Shahid, who have impugned the same judgment dated 29-5-2006, whereby they were convicted under section 489-C, P.P.C. And were sentenced to R.I. For 7 years each and to pay a fine of Rs,1,00,000 each in default they will suffer imprisonment of simple nature for three months. Both the appellants had been given the benefit of section 382-B, Cr.P.C.
2. ' On 30-8-2003, S.-I./S.H.O. Muhammad Rashid, the complainant lodged the F.I.R. At Police Station Eidgah, Karachi, stating therein that, he along with his staff was busy in patrolling, he received spy information about the presence of three persons at corner of Phoolwaligali of M.A. Jinnah Road, Karachi, having forged Indian currency. On this, at 2130 hours, he with his staff reached and on the pointation of spy, apprehended them with Khaki envelopes in their hands. On checking in presence of Mashirs A.S.-I. Muhammad Haroon and A.S.-I. Shakir Hussain, from the envelope of Muhammad Shahid three packets of forged Indian Currency containing 100 notes of 1000 in each packet, total amounting to Rs,3,00,000, were recovered. From the envelope of Jamshed Ahmed, four packets containing 100 notes of 500, total 2,00,000, from the envelope of Muhammad Aslam, one packet containing 100 note of 1000 total amounting to Rs,1,00,000. According to F.I.R., complainant secured the amount, sealed the same arrested the accused, brought them with case property, lodged the F.I.R. On behalf of the State at police station.
3. ' Charge was framed against the accused to which they pleaded not guilty and claimed to be tried.
4. ' To prove the charge, the prosecution examined P.W. No,1 A.S.-I. Shakir Hussain P.W.2 complainant S.-I. Muhammad Rashid, P.W. No,3 Investigating Officer Muhammad Shafaat.
5. ' On 4-3-2006, the learned D.D.A. Closed the prosecution side.
6. ' The accused were examined under section 342, Cr.P.C. They denied the allegations of keeping alleged Indian forged currency, arrest and claimed to have been falsely involved by the police. The accused Muhammad Shahid examined himself on oath in terms of section 340(2), Cr.P.C. And produced four tickets of Bus Karachi Pearl Express. However, he did not examine any defence.
7. ' Accused Muhammad Aslam also did not examine himself on oath, so also the evidence in his defence.
8. ' Mr. Muhammad Ashraf Kazi, appearing on behalf of appellants, contended that learned trial Court has not applied her judicial mind while deciding the case and on the basis of conjecture and surmises, convicted the appellants; that trial Court has committed serious illegality while not complied with mandatory provisions of section 367, Cr.P.C. Inasmuch as that only the examination- in-chief of the P. Ws. Reproduced , ignoring the cross-examination which is the part of evidence; therefore, judgment is liable to be set aside; that learned trial Court has not considered the fact that the police had grossly violated the mandatory provisions of section 103, Cr.P.C.
9. ' The learned counsel appearing on behalf of Advocate-General, supported the judgment of the learned trial Court and opposed the appeal.
10. ' I have heard the learned counsel for appellants and Mr. Abdul Majeed, learned counsel representing the State and perused the evidence and other material with their kind assistance.
11. ' P.W. S.-I.P. Complainant Muhammad Rashid, in his evidence has deposed that he had received spy information at about 9-15 p.m. It is a fact that M.A. Jinnah ,Road, is a famous place; the business was running at the place upto late night. It is fact that we have not arranged the private persons. P.W. Shakir Hussain, the A.S.-I. The Mashir of recovery, arrest and prepared by P.W.
12. Complainant, he deposed that we have spent about 30 to 40 minutes at the place of Wardat. It is fact that area of Jamia cloth is a thickly populated area. It is fact that there was rush of people upto 12-00 to 1-00 (mind night). It is fact that we have not arranged any private witness in this case. P.W. Shakir Hussain has deposed that we found that three persons standing on the pointed place and S.H.O. Apprehended them. The informer pointed out about the accused persons from some distance and went away. It is fact that when we reached at the pointed place the accused persons did not try to escape good. P.W. Muhammad Rashid, the complainant, in his evidence has deposed that it is fact that accused have not tried to run away. P.W. Muhammad Shafaat, the Investigating Officer, in his evidence has deposed that, it is correct that during the interrogation I have not asked any question from the accused persons that from whom they have purchased the forged currency.
13. ' From the above discussion, it appears that on spy information, the police party headed by complainant reached at the pointed place. It also appears that the place from where the accused were arrested was a thickly populated busy area. It has also come in evidence that the complainant party failed to arrange the private person to appoint him as Mashir of recovery of arrest. So, I am of the considered view that the prosecution failed to associate themselves an independent person in spite of having spy information and while not doing so, the prosecution has committed the violation of mandatory provisions of section 103, Cr.P.C.
14. ' From the evidence, it also appeared that the accused on seeing the police party did not try to made their good escape and allow the police to arrest them. So, if it was in the knowledge of the accused that they are in possession of forged currency note they could have made attempt to run away rather allow the police to arrest them. This fact even cannot be believed by prudent person that having knowledge of forged currency, allow the police to come and arrest them. So the prosecution failed to prove by evidenice that the accused were arrested with forged currency notes and also the accused had knowledge about the forged currency allegedly recovered from them. The basic requirement of section 489(c) is not fulfilled by the prosecution by producing credible evidence. It was held in the case of Ashraf Mian v. The State that, mere possession of the forged currency notes is again no offence, knowledge that they were forged notes as well as intention to use them are necessary to bring home charge against an accused person. It has further been held that:--- ' To bring a case under section 489(c), P.P.C. "knowledge" or reason to believe are necessary. It is clear that suspicion will not amount to sufficient cause to believe. The word "believe" is a stranger word than "suspect" and it involves the necessity of showing that the circumstances were such that a reasonable person must have felt convinced that the notes were forged or counterfeit. No such evidence is forthcoming in this case."
15. In view of the above discussion, I am of the considered view that the learned VIIth Additional Sessions Judge has not applied her judicial mind while arriving at conclusion and the finding recorded by her is based on mere surmise and not on any evidence brought on record by the prosecution, as held in the case (supra), the surmise is a slender foundation for recording a conclusion.
16. From the above forgoing discussion, I am of the considered view that the prosecution has failed to establish its case beyond reasonable doubts. Resultantly, I allow the appeals. The appellants are present on bail, their bail bonds stands discharged.
17. ' The above are the reasons of my short order, dated 5-6-2009.