SHAHNAWAZ TARIQ, J.---Through the captioned criminal appeal, appellants Ismail son of Niaz Lashari, Shan Ali son of Khadim Hussain Bhatti and Tahir Mehmood son of Ahmed, have impugned the judgment dated 29.11.2014, passed by the Court of III Additional Sessions Judge, Hyderabad, in sessions case No.275 of 2013, vide crime No.58 of 2013, lodged under sections 489-C and 34, P.P.C., at Police Station Cantonment, Hyderabad, whereby appellants were convicted and sentenced for R.I. 07 years with fine of Rs.10,000/- each and in case of default, they shall further suffer S.I. For 30 days. However, appellants were extended benefit under section 382-B, Cr.P.C.
2. Relevant facts spelt out from the prosecution case are that, complainant ASI Nisar Ahmed Hisbani along with police party during the patrolling intercepted four persons riding on two motorcycles and apprehended three accused persons near Bombay Bakery, Hyderabad City.
However, one culprit managed to escape good from the spot. During personal search of accused Ismail one fake note of Rs1000/- bearing No.BH-7111050, from accused Shan Ali two fake notes of Rs.1000/- bearing No. AZ-5791764 and BH-111050 and from accused Tahir Mehmood two fake currency notes of Rs.1000/- bearing No.AZ-5791764 and DX-0199532, were recovered. Accused persons along with recovered currency notes were shifted at Police Station, where instant FIR was lodged accordingly.
3. At the trial, formal charge was framed against accused persons vide Ex.4, to which they pleaded not guilty and claimed the trial vide their respective pleas.
4. To substantiate its case, prosecution examined P W-1 Nauman Ali Khan vide Ex.8, who produced letter issued by police vide Ex.8/A, PW-2 P.C. Ajab Khan vide-Ex.9, who produced mashirnama of arrest and recovery vide Ex.9/A and PW-3 complainant ASI Nisar Ahmed vide Ex.11, who produced FIR and copy of roznamcha entry vide Exs.11/A and 11/B, respectively. Thereafter, learned DDPP closed prosecution side vide Ex.12.
5. Statements of accused under section 342, Cr.P.C. Were recorded vide Exs.13 to 15, whereby they have vehemently denied the allegations leveled by the prosecution against them and claimed their innocence. It is further stated that they have been falsely implicated in the instant case at the instance of Ex-Nazim Chaudhry Altaf and nothing was recovered from their possession. After hearing the arguments of learned counsel for the parties, learned trial Court convicted the appellants vide the impugned judgment.
6. Learned counsel for appellants contended that appellants are innocent and have been falsely implicated in the instant case due. To ulterior motive of the complainant, who is in league with Ex- Nazim Chaudhry Altaf. He further contended that as per FIR, the recovered curfency notes were not sealed at the spot nor mashirnama of arrest and recovery was prepared there. He further contended that the recovered notes were not referred to the State Bank of Pakistan for the verification but said notes were personally produced by the investigation officer before head cashier of NBP Shahbaz Building, who opined that the recovered notes were forged. He further contended that neither head cashier was empowered to issue such endorsement nor was authorized by the competent authority in this regard. He further contended that accused persons were apprehended from thickly populated area, but complainant instead of hiring private witness to act as mashir of arrest and recovery, with ulterior motive, associated police personnel as mashirs. He further contended that appellants had not passed on the notes to anybody and the alleged recovery has been foisted upon them at the behest of Ex-Nazim Chaudhry Altaf, who is inimical with appellants.
7. While controverting the contentions raised by learned counsel for appellants learned A.P.G. Has contended that prosecution has successfully proved its case against appellants and they have failed to make out any valid ground to defeat the prosecution case. He further contended that accused persons have also failed to prove any enmity against the complainant as such instant appeal is liable to be dismissed.
8. Perusal of the material available on record and consideration of the arguments advanced by learned counsel for the parties emanate that accused persons were allegedly arrested on 28.04.2013, from the thickly populated area of Hyderabad City near Bomby Bakery. Neither there was any source of information regarding the possession of forged currency notes by the appellants nor any complaint was made by any person against accused persons. From bare perusal of the contents of FIR, it is A crystal clear that neither the recovered forged notes were sealed at the spot nor such mashirnama of arrest and recovery was prepared at the place of wardat, which is utter violation of the settled norms of criminal administration of justice.
9. PW-2, P.C. Ajab Khan and PW-3, complainant ASI Nisar Ahmed in their cross-examination, have candidly admitted that case property was not sealed at the spot. They have also not deposed the numbers of recovered currency notes in their evidence. Furthermore, the complainant himself produced all the five currency notes by hand before the PW-1 Nauman Ali head cashier of NBP Shahbaz Building, who disclosed that said notes were forged and he also made such endorsement on the letter dated 07.05.2013, issued by SHO addressed to the Manager, NBP Shahbaz Building, Hyderabad, to verify the above notes. Neither the Manager of said NBP Shahbaz Building, Hyderabad, issued any letter of verification that the recovered notes were forged nor appeared in person before the trial Court to corroborate the allegations leveled by the prosecution. Indeed, neither PW-1 Nauman Ali, head cashier, was an expert nor authorized by the competent authority to issue any such certificate regarding the genuineness of the said currency notes, as such his statement could not be taken into consideration. Undoubtedly, the recovered notes were not sent to State Bank of Pakistan for examination and report nor any expert was examined by the prosecution to testify that the notes secured from the possession of accused persons were forged or counterfeited. In the case of Ashraf Mian v. The State (1989 PCr.LJ 1079), it was observed as under:- "11. There is, however, no iota of evidence on record to prove that these currency notes were either forged or counterfeited. The notes were not sent to State Bank of Pakistan for examination and report. No expert was examined to testify that the notes secured from the possession of the appellant were forged or counterfeited. The notes were also not sent to American Embassy for getting the same examined from Federal Bank of United States. The notes cannot be proved to be forged only because two police officers having no special knowledge come forward and say that they are forged ones. An important link connecting the appellant with the offence with which he is charged was, therefore, missing in this case.
12. Mere possession of forged currency notes is again no offence. The knowledge that they were forged ones, as well as intention to use them are necessary to bring home charge against an accused person."
10. It is well settled that in cases of recovery, police has to associate private persons as mashir if they are available on the spot to maintain the transparency of the recovery rather than to hire the police personnel in this regard. Allegedly, accused persons were arrested from thickly populated area of Hyderabad City, but complainant did not attempt to associate any available private person on the spot to act as mashir of recovery which is utter violation of the dicta laid down in the case of State v. Bashir and others, (PLD 1997 SC 408), wherein the Hon'ble Supreme Court while dealing with the provisions of section 103, Cr.P.C., 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 1997 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."
11. Allegedly, the currency notes were recovered from the possession of accused though they have denied said recovery, but prosecution has failed to produce any evidence on record to believe that accused were in knowledge that said notes were forged or counterfeited or accused were intending to use those notes or attempted to pass on the same to anybody else, as such element of criminal mens rea is entirely missing. The mere possession of forged and counterfeited currency notes did not constitute any offence against the accused persons. The onus lies on the prosecution to prove circumstances which lead clearly, undoubtedly and irresistibly to the inference that the accused had the intention to foist the notes on the public. Such intention can be proved by collateral circumstances such as that the accused had planned off such notes before, or that they were in possession of similar notes in such large numbers. In the case of Hamid Yousif v. The State (2011 PCr.LJ 172), it was observed as under:- "Accused had no knowledge nor had reason to believe that the counterfeit currency notes were in fact forged or counterfeit; and he did not intend to use the same as genuine; or that it could be used as genuine. Basic and mandatory requirements of law, in circumstances, had not been fulfilled. Prosecution had failed to meet the requirement of 8.489-C, P.P.C. For sustaining a conviction and sentence for the offence. Trial Court while convicting accused had found his "mere possession" and then without caring for essentials of S.489-C, P.P.C. Proceeded to pass impugned judgment, which was not sustainable. Said judgment was set aside and accused was acquitted of the charge levelled against him and he was set free."
13. The findings recorded by the learned Additional Sessions Judge are based on mere surmises and conjectures, and not on any solid and inspiring confidence iota of evidence, and conviction is based only on mere possession of said notes, without caring the essential requirements of section 489-C, P.P.C., which is not sustainable under the law.
14. Considering the above facts and circumstances, prosecution has failed to bring guilt at home, while the appellants have succeeded to make out their case, as there are solid reasons to believe their plea of innocence. It is well settled that any slightest iota of doubt if created in prosecution case, shall be counted in favour of the accused. Consequently, instant criminal appeal stands allowed as prayed and the impugned judgment dated 29.11.2014, passed by the learned trial Court is set aside. Office is directed to issue writ of release of the appellants to the concerned Superintendent Jail with direction to release them forthwith if they are not required in any other case.