1. ' MUHAMMAD TASNIM, Granted.
2. Applicants are booked in Crime No, 12 of 2011, under sections 489-B/ 489-C/34 P.P.C., Police Station F.I.A Crime Circle, Karachi. In the first place applicants applied for bail before the learned III- Additional Sessions Judge, Karachi-East, who vide his order dated 7-6-2011 Liismissed the same.
2. Against the aforesaid order present bail application has been filed.
3. ' The facts of prosecution case, as set out in the area that on receipt of source information that applicants are indulged in sale and distribution of fake dollars. Accordingly permission for enquiry was accorded by competent authority for cultivating sources into allegation. The source informed that both applicants had agreed for sale one note of counterfeit US $ of 100 denomination against Pak Rs,3500. The source negotiated with them for purchase of 10,000 counterfeit U.S $ and the delivery of counterfeit U.S $ was decided at Queta Tea Stall, near Al-Falah Mosque, Al-Falah Market PECHS Block-2, Karachi. Accordingly F.I.A team consisting of S.I Indrias Bahadur, S.I. Zeeshan Awan, F.C. Imtiaz-ur-Rehman, F.C. Shoaib reached at Police Station Ferozabad and took assistance of S.H.O. Accordingly, under the supervision of Investigating Officer they reached at the spot at about 1200 hours. Both the applicants reached on their motorcycle number whereof is mentioned in the F.I.R. As per arrangement the sources gave signal of their arrival and when they delivered agreed U.S $ 100 the raiding party rushed to the spot and apprehended both the applicants and recovered U.S $ 10000 i,e, 100 notes of 100 denominations each from applicant Naeem. It is further stated that on their personal search mobile telephones were also recovered. Their motorcycle and the recovered articles were seized and seizer memo was prepared. On spot interrogation, both the applicants disclosed that counterfeit U.S dollars were arranged by Muhammad Salman Ahmed Siddiqui. They also disclosed that more than 10000 counterfeit U.S dollars delivered by said 'Salman are kept at their residence. Accordingly both the accused persons were taken into custody and proceeded to their residence situated at House No,262-0, Block-6, PECHS, Karachi. Accused Faisal voluntarily produced U.S. $ 10000 i,e, 100 notes of 100 denominations each, which were brought by him from inside the room, same were taken into possession under separate seizer memo.
4. Thereafter F.I.R was lodged and further action in accordance with law was taken.
5. ' Learned counsel for the applicants in support of the bail application has submitted that no private witness was associated at the time of alleged recovery or arrest of the present applicants. He further submitted that no alleged purchaser has been shown in the F.I.R nor anybody's name has been mentioned in the F.I.R, who has purchased counterfeit dollars from the applicants. Learned counsel further submitted that from the bare reading of the F.I.R. At best offence under section 489- C P.P.C. Will be made out, which is bailable offence. Learned counsel further submitted that ingredients of provision of section 489B P.P.C. Are not fulfilled from the contents of the F.I.R. He submits that it is not alleged that applicants were either selling, buying or receiving from any person or otherwise trafficking or using as genuine any forged or counterfeit currency note.
6. Learned counsel further submitted that if the contents of the F.I.R are taken as gospel truth, it only shows the possession of the counterfeit dollars with the applicants and in such situation section 489-C, P.P.C. Will be attracted. Learned counsel further argued that in this case the complainant and the Investigating Officer is the same, in this way there cannot be any independent investigation. He submitted that case of the prosecution is doubtful on this count as well. In support of his contention, learned counsel has relied upon the following case law:--
(1) Muhammad Afzal v. The State (2004 YLR 2168).
7. (2)Ghulam Dastagir v. The State (2005 PCr.LJ 405), (3)Zafar Iqbal v. The State (2000 PCr.LJ 834), (4)Muhammad Ameen v. The State (1990 PCr.LJ 84), (5)Muhammad Sajjad v The State (1996 PCr.LJ 815), (6)Muhammad' Yousuf v. The State (1997 PCr.LJ 21), ' On the other hand learned Standing Counsel has vehemently opposed the grant of bail and has submitted that there is ample material available with the prosecution, which connects present applicants with the commission 'of offence. Learned Standing Counsel further submitted that applicants had come to a place, which was fixed by the F.I.A for delivering the counterfeit. US$. He further submitted that since the applicants were arrested on the spot, recovery was effected on the spot so also on their pointation. He says that all the prosecution witnesses have supported the version of F.I.R in their statements under section 161, Cr.P.C. He further submitted that applicants are not entitled to bail.
8. ' I have heard the learned counsel for the parties and have perused the record so also case-law cited at the bar.
9. It is an admitted position that the person, who was allegedly purchasing the counterfeit US dollars from the applicants was neither associated nor cited as prosecution witnesses or made mashir of arrest or recovery. Even the name of such person has not been disclosed. In the F.I.R as well word buyers has been used, but the name of the persons has not been disclosed. This aspect makes the case of prosecution doubtful. It is also an admitted position that no private witness was associated at the time of arrest or recovery though entire action was taken on spy information. In these circumstances, in all fairness, the F.I.A authorities should have associated at least two private witnesses of the same locality. Since the place where alleged incident took _place was a thickly- populated area having number of shops. It was very easy to associate private, witness to show their bona fide. In the case of State v. Bashir PLD 1997 SC 408 the Hon'ble Supreme Court of Pakistan while dealing with the provision of section 103, Cr.P.C. With regard to presence of two independent witness of the locality has observed as under; "As regards the above second submission of Mr. M. M.Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. Namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent Judgment of this Court- in the case of Mushtaq Ahmed v. The State PLD 1996 SC 574. In the case in hand, SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public."
10. ' In the case of Muhammad Ameen (supra), the leaned Single Judge of this Court while dealing with the provisions of section 103, Cr.P.C. Has observed as under:-- "5. The witnesses of search should be respectable and of the locality and the occupant of the premises should also be there at the time of search, are valuable safeguards. The police have always their pet witnesses or some can be easily hired or influenced, and, therefore, it is that 'respectable' and 'of the locality' have been considered as necessary qualifications of the search witnesses. The Court should always be vigilant to know as to why the witness has trudged all the way from his place to the place of search and why the police could not have a search witness. It is an open secret that the police have always certain henchmen who are prepared to go to any extent with them. The cases reported as Sardar Ali v. The State PLD 1964 Lah. 386, Jahana v. The State 1978 PCr.LJ 157, and The State v. Abba Ali Shah alias Abba Umar and another PLD 1988 Kar.
11. 409 are relevant in this behalf. In the first cited authority it was observed that the Courts should insist on strict compliance of the requirement of section 103, Cr.P.C."
12. It is also an admitted position that complainant and the Investigating Officer is the same. It has been consistent view of the Superior Courts that when the complainant and Investigating Officer is the same, benefit has been extended to the applicant/accused for enlarging him on bail. It is settled legal position that at the bail stage deeper appreciation of the record cannot be gone into, but only a tentative assessm ent is to be made just to find out as to whether present applicants/accused are connected with the commission of offence or not. Applying the above settled legal position to the case in hand, it will be seen that prima facie ingredients of section 489- B, P.P.C. Are not met in the circumstances of the case, but at best it can be a case of section 489-C, P.P.C., for which minimum punishment is prescribed to the extent of seven years or with fine or with both, which does not fall within the prohibitory clause of section 497, Cr.P.C.
13. ' In the case of Muhammad Sajjad (supra), the learned Single Judge of Lahore High Court while dealing with the provision of section 489-B, P.P.C. Has observed as under:-- "(5) Possession simpliciter of a counterfeit currency note does not constitute ingredients of section 489-B, P. P. C. This section deals with the sale, purchase, receipt or otherwise trafficking of a counterfeit coins/currency notes. This section also deals " with use of a counterfeit currency note as genuine, whereas section 489-C, P. P. C. Deals with possession of any forged or counterfeit currency notes. The contents of F.I.R. Do not show that the petitioner was selling or buying the counterfeit currency note. The information was that the petitioner was' in possession of a counterfeit note worth Rs,1,000 and the same was recovered from the possession of the petitioner.
14. Hence prima facie the offence would fall under section 489-C, P.P.C. Which is not punishable with 10 years' R.I. Or more. The petitioner is not a previous convict and is no more required for further investigation."
15. ' While dealing with the provisions of section 489-B, P.P.C., learned Single Judge of Lahore High Court in the case of Muhammad Afzal (supra), has observed as under:-- "(6) From the bare reading of the case of possession of the counterfeit/ forged/fake currency notes is made out for which section 489-B, P.P.C., prima facie, does not apply because the provisions of section 489-B of P.P.C. Refer to a situation when the person in possession of the counterfeit currency notes sells, buys or receives from any other person or otherwise traffics it or uses it as genuine, knowing or having reasons to believe the same to be forged and counterfeit. In the instant case, there is no allegation/accusation of such kind found in the F.I.R. I made a query from the Investigating Officer, present in Court, as to whether any evidence of sale and purchase was recorded by him during the investigation, to which he replied in the negative, therefore, the case of the petitioner prima facie falls within the offence of section 489-C, for which the punishment has been prescribed as to the extent up to 7 years or with fine or with both, which does not fall within the prohibitory clause of section 497, Cr.P.C."
16. ' In the case of Ghulam Dastagir (supra) while dealing with the case of accused, who, at the time of arrest, was neither exchanging nor buying nor selling nor trafficking the fake currency, the learned Single Judge of Peshawar High Court has dealt with the issue in the following words: "6. The perusal of the record indicates that the accused-petitioner at the time of his arrest was neither exchanging nor buying nor selling nor trafficking the lake currency notes as genuine having knowledge to believe that the same was forged or counterfeit. The prosecution is yet to prove through convincing evidence in the trial Court that the offence with which the accused- petitioner has been charged falls under section 498-B and not 489-C, P.P.C. No independent witness was associated by the police party when the alleged recovery was made, though the petitioner ,was apprehended at a busy place i,e, Old Bara Check Post. While relying on the dicta laid down in Sher Ahmad v. The State PLD 1993 Pesh. 104, Abdul Maroof v. The State. PLD 1993 Pesh.
17. 167, Shafique Sajid v. The State 1988 PCr.LJ 1553, State through Advocate-General, N. W.F.P. v. Shah Nawaz 1996 MLD 2049 and Hassan v. The State 1984 PCr.LJ 1281 it can safely be held that the case of the accused-petitioner is arguable for the purpose of bail being that of further enquiry."
18. There is prima facie doubt in alleged recovery as two private witnesses of the locality were not associated at the time of alleged recovery or arrest. Even otherwise case of applicants in the circumstances falls under section 489-C, P.P.C. In view of above settled legal position the applicants have made out a case of further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, applicants are admitted to bail on their furnihisng solvent surety in the sum of Rs,3,00,000 (Rupees Three Lac) each and P.R. Bond in the like amount to the satisfaction of learned trial court .