2016 M L D 1990
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail, J
NISAR AHMED--- Appellant
Versus
The STATE---Respondent
Criminal Appeal No. (s)158 of 2013, decided on 21st November, 2014.
Penal Code (XLV of 1860) ---
----S. 489-C---Possessing forged or counterfeit currency -notes or Bank Notes ---Appreciation of
evidence ---Certificate of the State Bank of Pakistan, that alleged currency note was examined by
the expert who found it forged one, was neither conclusive nor speaking ; as it did not contain the
name of the concerned Currency Officer ---Said certificate was also silent about the procedure
adopted for examining the alleged forged currency note ---Single line report, which was inclusive
and non- speaking, did not provide requisite strength to the prosecution's case ---Said Currency
Officer was not produced by the prosecution and his report was tendered through the
Investigating Officer ---Since the Currency Officer was not a notified expert of the Government,
he was not exempted from appearance ---Without presence of Currency Officer said report was
also not admissible in evidence ---Nothing was on record to suggest that accused knew or had
reason to believe that said currency note was forged or that he intended to use it as genui ne---
Conviction of accused, was not warranted by the evidence produced against him ---Conviction
and sentence of accused, were set aside, he was acquitted and was directed to be released
forthwith, in circumstances.
Shafique Sajid v. The State 1988 PCr.LJ 1553; Azmat Khan v. The State 2000 PCr.LJ
1461 and Muhammad Aslam v. The State 2010 PCr.LJ 198; Amanat Ali v. The State 1971
PCr.LJ 53, M. Mammutti v. State of Karnataka AIR 1979 SC 1705, Hassan v. The State 1984
PCr.LJ 1281, Shafique Sajid v. The State 1988 PCr.LJ 1553 and Ashraf Mian v. The State 1989
PCr.LJ 1079 ref.
Zameer Ahmed for Appellant.
Nemo for Respondent.
Date of hearing: 21st November, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This criminal appeal is
directed against the judgment dated 11th December, 2013("impugned judgment") passed by the
learned Sessions Judge, Sibi ("trial court"), whereby the appellant was convicted under Section
489-C of the Pakistan Penal Code, 1860, (P.P.C.) and sentenced to suffer Rigorous Imprisonment
for a period of two years with fine of Rs.5000/ -. In default of payment of fine he was directed to
further suffer Simple Imprisonment for a period of six months. Benefit of Section 382- B of
Criminal Procedure Code, 1898 ("Cr.P.C.") was also extended in his fa vour.
2. Brief facts of the case are that on 05.01.2013 consequent upon written complaint of
Muhammad Faheem, the FIR No.05 of 2013 was lodged with police station City Sibi under
Section 489- C, P.P.C., on the allegation that on the stated date, time and pl ace the appellant, on
receiving information that forged currency notes are being used as genuine at Tablighi Ijtima
Sibi, he arrested the appellant Nisar Ahmed, who tried to escape on seeing the police official. On
search from his personal possession a cur rency note of Rs.1000/ - was recovered. He disclosed
that he along with Abdul Rasheed were using the forged currency as genuine. Hence the above
FIR was registered.
3. After registration of the FIR, the investigation was conducted, which resulted into
submi ssion of challan before the learned trial court. Charge was framed and read over to the
appellant and co -accused to which they did not plead guilty and claimed trial, whereafter the
prosecution in order to substantiate the charge against them produced as m any as three witnesses.
On completion of the prosecution evidence the appellants' statements were recorded under
Section 342, Cr.P.C. wherein once again they professed their innocence. However, both of them
neither recorded their statements on oath as envi saged by Section 340(2), Cr.P.C., nor produced
any defence witness. On the assessment of evidence available on record, the learned trial court
found the appellant guilty for, the offence under section 489- C, P.P.C. and convicted him
accordingly, whereas th e co-accused was acquitted of the charge. Hence this appeal.
4. Mr. Zameer Ahmed, the learned counsel for the appellant, at the very outset contended
that the necessary ingredients for constituting the offence under Section 489- C, P.P.C. were not
available to the prosecution. He added that the knowledge and intention of the accused person is
a condition precedent for establishing the alleged offence and simply the possession of forged
currency note does not constitute the offence, therefore, the conviction and sentence recorded by
the trial court is not sustainable and the appellant deserves to be acquitted of the charge.
5. Heard.
6. The points requiring proof for an offence under section 489- C, P.P.C, are as follows: --
(i) That the currency notes were forg ed or counterfeited;
(ii) That the accused were found in possession of the said currency notes;
(iii) That the accused knew or had reason to believe that the said notes were forged or
counterfeited;
(iv) That the accused intended to use the currency notes as genuine, or that they might
be used as genuine.
7. The fact that the currency note sent to State Bank of Pakistan was found to be forged is
proved from the evidence available on record. The certificate of the State Bank of Pakistan
(Exh.P/3- E) produced by Muhammad Islam (PW -3) though, makes it clear that the said note was
examined by the expert, who found it forged but this certificate is neither conclusive nor
speaking, as it does not contain the name of the concerned Currency Officer. Moreover, it is a lso
silent about the procedure adopted for examining the alleged forged currency. A single line
report, which is inconclusive and non- speaking does not provide the requisite strength to the
prosecution's case. It is further noticed that the said currency o fficer was not produced by the
prosecution and his report was tendered through the investigation officer of the case. Since, the
currency officer is not a notified expert of the Government, therefore, he is not exempted from
appearance under Section 510 of the Criminal Procedure Code, 1898 ("Cr.P.C."), hence, without
of the currency officer the said report was also not admissible in evidence.
8. Even if it is admitted for argument sake that the above forged currency note was
recovered from the possession of the appellant there is nothing on record to even faintly suggest
that the appellant knew or had reason to believe that the same was forged. It may be noted that
mere possession of forged currency notes is not an offence. The learned counsel for the appell ant
referred me to a wealth of case- laws commencing from 1988 down to the present day in support
of his contention that the possession of the forged currency note is punishable under section 489 -
C, P.P.C. only, when it is accompanied by an intention to use them as genuine. The first of these
cases is the case of Shafique Sajid v. The State (1988 PCr.LJ 1553). The other cases are Azmat
Khan v. The State (2000 PCr.LJ 1461) and Muhammad Aslam v. The State (2010 PCr.LJ 198).
The learned counsel has coincidental ly also placed reliance on an unreported judgment rendered
by myself in Criminal Appeal No. (s) 154 of 2013. This proposition came up for hearing before
the Hon'ble Lahore High Court in case of Bur Singh v. The Crown reported in AIR 1931 Lah.
34, wherein i t was held: --
"Mere possession of forged notes is not an offence under the Indian Penal Code. In order
to bring a case within the purview of section 489C of the Indian Penal Code it is not only
necessary' to prove that the accused was in possession of forged notes, but it should be
further established, (a) that at the time of his possession he knew the notes to be forged or
had reason to believe them to be so, (b) that he intended to use them as genuine or that
they might be used as genuine."
It was further observed: --
The onus lies on the prosecution to prove circumstances which clearly indubitably 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 s uch as that the accused
had planned off such notes before or that he was in possession of such and similar notes
in such large numbers, that his possession for any other purpose is inexplicable:"
8. This view was followed in the case of Salvator Belvisi v. The State reported in PLD 1961
Kar. 342, wherein it was observed: --
"But even if it be assumed that the 10 forged dollar notes of 100 dollars each were
recovered from the brief case belonging to Belvisi it is not quite clear how he can be said
to have had knowledge that the notes contained therein were forged ones and that he
intended to use them knowing them to be forged ones, especially when it is not difficult
to imagine that he had received these notes from his companion Schillinger from whom
30 such dollar notes were recovered"
9. The cases of Amanat Ali v. The State reported in 1971 PCr.LJ 53, M. Mammutti v. State
of Karnataka reported in AIR 1979 SC 1705, Hassan v. The State reported in 1984 PCr.LJ 1281,
Shafique Sajid v. The State reported in 1988 P Cr.LJ 1553 and Ashraf Mian v. The State reported
in 1989 PCr.LJ 1079, also support the aforesaid view. I cannot do better than quoting the
weighty observations of their Lordships of the Supreme Court of India in the case cited at S.
No.(iii), in extenso: --
"The appellant has been convicted in this appeal under sections 489- B and 489- C and has
been sentenced to R.I. for one year and to R.I. for six months respectively and fine of
Rs.500. The sentences have been directed to run concurrently. The learned couns el
appearing for the appellant has stated that it is true that the appellant was found in
possession of a counterfeit two rupee note and the accused handed over the note to a
friend to purchase a ticket for a circus show. The booking clerk on seeing the note got
suspicious. He immediately informed the Sub- Inspector of Police and on search of the
appellant 99 two rupee notes were recovered. The appellant in his statement under section
342, stated that two days ago he sold three quintals of tamarind fruits to a person whom
he did not know and that person gave him a sum of Rs.390. These currency notes have
been given to him by the purchaser. He also said that he did not know that these currency
notes were counterfeit and he came to know of it for the first time when he was
interrogated by the police. There is no evidence of any witness to show that the
counterfeit notes were of such a nature or description that a mere look at them would
convince any person of average intelligence that it was a counterfeit note. Nor was any
such question put to the accused under section 342, Cr.P.C. The High Court has affirmed
the judgment of the learned Sessions Judge on the ground that in his statement under
section 342, made before the committing Court the accused has made a st atement
different from that made in the Sessions Court and therefore, the appellant had reason to
believe that notes in his possession were counterfeit notes. There the High Court is not
correct because even in the statement before the Committing Court in Exh.P.13 which
appears at p.154 of the paper book, the appellant has stuck to, the same statement which
he made before the Sessions Court that he had sold three quintals of tamarind fruits and
from the purchaser he received a sum of Rs.390 in two rupees notes. We are not able to
find any inconsistency between the answer given by the accused in his statement under
section 342, before the Sessions Judge and that before the Committing Court specially on
the point that the appellant had the knowledge or reason to believe that the notes were
counterfeit. Mr. Nettar submitted that once the appellant is found in possession of
counterfeit notes, he must be presumed to know that the notes are counterfeit. If the notes
were of such a nature that a mere look at them wo uld convince anybody that it was
counterfeit such a presumption could reasonably be drawn. But the difficulty is that the
prosecution has not put any specific question to the appellant in order to find out whether
the accused knew that the notes were of su ch a nature. No such evidence has been led by
the prosecution to prove the notes also. In these circumstances,
it is impossible for us to sustain the conviction of the appellant. For these reasons,
therefore, the appeal is allowed, conviction and sentence s passed, on the appellant are set
aside, and the appellant is acquitted of the charges framed against him."
10. In the face of such a clear pronouncement, the learned Additional Sessions Judge should
not have overlooked this most important ingredient of s ection 489- C, P.P.C. There is no iota of
evidence, on record, either direct or presumptive to prove that the appellants had reason to
believe that the currency notes found in their possession were forged or that they intended to use
them as genuine. As indicated earlier mere possession of forged currency notes is not an offence.
11. Considering these, facts, I have been led to the conclusion that the appellant's conviction
is not warranted by the evidence produced against him in the case. Accordingly, I al low the
appeal, acquitting him and setting aside his convictions and sentence. Appellant Nisar Ahmad
son of Muhammad Yaseen, who is in custody be released forthwith, if not required in any other
case.
12. By short orders dated 21 -11-2014 I had allowed this appeal. These are the reasons for the
said order.
HBT/52/Bal Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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