1989 PLP 4138 (MLD)

Briefly the prosecution case is that on 16-9-1987 Abdul Qadeer Khan, Inspector FIA Hyderabad received the information that the present appellant, a resident of Pathan Colony, Hyderabad, was in possession of forged Pakistan currency notes and had been dealing in the same. The said Inspector alongwith other Inspector Ghulam Subhani. ASI Mohammad Dawood and Magistrate Mr. Sirajuddin raided the house of appellant wherefrom he secured 69 forged Pakistan currency notes of Rs. 100 each bearing serial No. QE/1-672421 which were lying in a small ploythene bag secretly kept under the seat of a wooden chair in a locked room. The forged currency notes were seized and the appellant was arrested and such Mashirnama was prepared and consequently FIR was registered. Raiding report was obtained from the Magistrate and after recording the statements of P.Ws., the appellant was challaned in the Court. Charge was framed under sections 489-C and 489-A PPC. Prosecution examined complainant Abdul Qadeer Khan, Inspector FIA; Hyderabad, who produced Mashirnama of recovery and arrest, FIR and raiding report. PWs Ghulam Subhani, Inspector FIA and Mukhtiarkar & FCM Sirajuddin were also examined while the other PW A.S.I. Muhammad Dawood was given up. The appellant was examined under section 342 Cr.P.C. who denied the allegations and stated that he has been falsely implicated due to enmity. He further stated that he was arrested from his house in Pathan Village, Katcha Qila Hyderabad where he resided. In support of his contention he produced his Identity card and affidavit of Mst. Meeran and copy of judgment of the High Court of Sind in Cr. Misc. Application No. 15 of 1980. He however did not give his statement on oath. The learned trial Court framed the following points for determination:-- "(1) Whether accused Jan Mohammad was found in possession of 69 forged currency notes- of Rs. 100 denomination each, knowing the same to be forged or having reason to believe the same to be forged and intending to use the same as genuine? (2) Whether the accused counterfeited 69 Pakistani currency notes of Rs. 100 denomination each or knowingly performed any part of the process of counterfeiting? (3) What offence, if any, has been committed by the accused? The trial Court found that point No. 2 above was not proved whereas finding the point No. 1. to have been proved by prosecution, the appellant was sentenced as stated above. I have heard Mr. Shaikh Rehman Bux, the learned counsel for the appellant, who has submitted that the finding of the trial Court that the appellant was found in possession of the said forged currency notes is eroneous. He contends that on the contrary the present case is obviously foisted upon the appellant.. He has drawn my attention to the provisions of section 103 Cr.P.C. and argued that the Mashirnama of recovery and arrest are signed by Ghulam Subhani, Inspector F.I.A. who is the colleague of the complainant/and Muhammad Dawood A.S.I. of the F.IA. who is a subordinate of the complainant and no independent witness has been examined. According to the learned counsel the raid had taken place in the evening time before sunset in Pathan Colony, a thickly populated locality where a number of persons are usually available and anyone of them could have been called to act as Mashir. He has further pointed that alongwith the police party there was a private person as admitted by the complainant himself in his evidence-in-chief where he has said that "the informer was also accompanying me and may party". The learned counsel has further pointed out that the complainant while explaining the reason as to why the Inspector and the A.S.I. acted as Mashirs, has said that the neighbours had refused to act as mashirs while in his cross-examination he has stated that there were no male persons available in the neighbouring houses to be made as Mashir. It is also pointed from the cross-examination of the complainant that the Dy. Director of F.I.A. was with the raiding party and there was another private person with the said Dy. Director but no explanation has been given as to why these two private persons were not made Mashirs of Mashirnamas of recovery and arrest. From this the learned counsel has contended that the provisions of section 103 Cr.P.C. have been violated and the said recovery is to be excluded from consideration. He has placed reliance on the case of Muhammad Afzal v. The State (1983 S C M R 1) and also the case of Abdul Hameed v. The State (1987 P Cr. L J 1707). Reliance has also been placed on the cases of Muhammad Azeem v. The State (1977 P Cr. L J 671) and Mangio v. The State (1976 P Cr. L J 243). In all the above cases emphasis has been laid down that in case of recovery of incriminating articles from the house or in case of search, the legal requirement is that the same should be witnessed by independent persons of the locality or persons other than the police officers. I am in agreement with the above contention of the learned counsel and am inclined to follow the principles laid down in the abovesaid decisions. The second ground urged by the learned counsel is that there is nothing on the record to show that the said forged' currency notes were sealed by the prosecution at the time of having recovered the same. No such mention is made m the Mashirnama which is a necessary requirement and the failure would result in discarding the same from the evidence. He has placed reliance on the case of Abdul Aziz alias Teny alias Chhoto v. The State (1989 P Cr. L J 1072) wherein it has been observed:-- "

14. The recovery of blood-stained clothes of appellant from his house situated in Unit No. 12, Shah Lateefabad can be discarded for simple reason that they were not sealed on the spot." He has further argued that` the Mashirnama of the recovery shows that all the 69 notes bore same serial number QE-672421 while the complainant has admitted in his cross-examination that one of the forged notes bore a different serial number and the Magistrate in his cross-examination has admitted that only 64 notes had been bearing the serial number 672421 while the remaining notes had different serial numbers. The learned counsel has further submitted that even on this ground the prosecution cannot be said to have proved the case against the appellant. Thirdly the learned counsel has submitted that the complainant or for that matter even the trial Court cannot be said to be expert to determine as to whether the said currency notes were genuine or forged. According to the learned B counsel there is no expert opinion in this respect and as such also the finding of the trial Court is erroneous. Lastly, it has been submitted that the statement of the appellant under section 342 Cr.P.C. has not been certified as required under the provision; of section 364 (2) Cr.P.C. The learned A.A.-G. appearing for the State, in view of the above -facts has not been able to show any other material from the record to controvert the contentions of the learned counsel for the appellant. In view of this I allow the present appeal, set aside the conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless required in any other case. M.Y.H/J-74/K Appeal allowed.