2023 Y L R 411
[Balochistan]
Before Abdullah Baloch, J
SHABBIR ALI ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 1 of 2022, decided on 9th April, 2022.
(a) Penal Code (XLV of 1860) ---
----S. 489- B---Using as genuine forged or counterfeit currency- notes or bank- notes ---
Appreciation of evidence ---Benefit of doubt ---Failure to conduct recovery proceedings on
spot---Scope ---Accused was convicted under S. 489- B, P.P.C., for using counterfeit currency
notes as genuine ---No recovery proceedings were carried out at the spot rather the accused
was taken to the police station and thereafter police had conducted his personal search ---No
explanation was available on record as to why the recovery proceedings were not carried out
at the spot and as to why his personal search was not conducted at the spot, which otherwise in such like cases was necessary ---Recovered currency notes were not exhibited by the
prosecution---Entire evidence produced by the prosecution appeared to be untrustworthy---
Investigating Officer had conducted a poor investigation---Case of prosecution was doubtful, but unjustifiably the benefit of such doubts was not extended in favour of the accused---Impugned judgment was set aside and the accused was acquitted of the charge ---Appeal was
accepted.
(b) Criminal trial ---
----Benefit of doubt ---Scope ---Accused is entitled to be extended benefits of doubt as a
matter of right ---Accused cannot be deprived of benefit of doubt, merely because there is
only one circumstance, which creates doubts in the prosecution story.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Khuda -e-Noor for Appellant.
Fazal -ur-Rehman, State Counsel.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.01 of
2022 filed by the appellant (convict) Shabir Ali son of Muhammad Ali, against the judgment
dated 15th March 2022 ("the impugned judgment") passed by learned Additional Sessions
Judge -X Quetta ("the trial Court"), whereby the appellant was convicted under section 489-
B, P.P.C. and sentenced to suffer 3- years R.I., with fine of Rs.20,000/ - or in default thereof
to further suffer six(06) months S.I., with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 24th August 2021, the complainant Abdul Wakil son of
Pai Din lodged FIR No.105 of 2021, at Police Station Saddar Quetta, under section 489- B,
P.P.C., with the averments that on the said date at about 04.30 p.m. the appellant came to the shop of complainant, bought a bottle of Dew cold drink and handed over a currency note bearing No.UX6214106 of Rs.1000/ - to the complainant, which was checked by him and
found the same as fake/ counterfeit, hence the accused was apprehended and was handed over to the concerned police patrolling officials.
3. After registration of FIR, the appellant was arrested, investigated and was challaned
in the trial Court, which indicated the charge to appellant, who denied the same, thus the
prosecution in order to establish the charge has produced the evidence of four (04) witnesses,
whereafter the appellant was examined under section 342, Cr.P.C. However, neither he recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing argument, the appellant was found guilty of the charge and was convicted and sentenced as mentioned above in para No. 1. Whereafter, instant appeal has been filed.
4. Heard the learned counsel and perused the available record. Perusal of record reveals
that it is a case of no evidence at all and the learned trial Court while delivering the
impugned judgement has reached to a conclusion, which is perverse and contrary material
available on record. The contents of FIR shows that no recovery proceedings were carried out at the spot rather the appellant was taken to Police Station Kharot Abad and thereafter to
Police Station Saddar, where his personal search was conducted, which resulted into recovery of remaining fake/counterfeit currency notes. There is no explanation that as to why the recovery proceedings were not carried out at the spot and as to why his personal search
was not conducted at the spot, which otherwise in such like case is necessary. Such
infirmities creates serious doubts in the case of prosecution.
5. The complainant of case namely Abdul Wakil appeared in the Court as PW -1, who
contradicted the contents of his fard -e-bayan Ex.P/1- A on certain counts. PW -1 in his cross -
examination stated that the police conducted the personal search of appellant, which resulted into recovery of further Rs.16000/ - fake/counterfeit currency notes. The PW -1 has failed to
mention the denomination of each currency note. PW -2 Mumtaz Ali, ASI, stated that on the
day of occurrence he was present in the Investigation Room, wherein the I.O. Haroon, ASI,
conducted the personal search of appellant and recovery of 15- Nos fake/counterfeit of Rs.
1000/ - denomination were effected, while according to PW -1 the appellant was handed over
to the police mobile, which was patrolling nearby the place of occurrence. PW -2 produced
the recovery memo. Ex.P/2- A, which reflects that 15 Notes of Rs. 1000/ - each were taken
into possession, but neither the numbers of each note is mentioned in the recovery memo. nor
any signs were made on the currency notes, while the report is showing the number of each
notes. Even otherwise, the same was not exhibited by the prosecution. Such glaring
infirmities create doubts in the case of prosecution.
6. PW-3 Farhan contradicted the statement of PW- 1 and stated on the day of occurrence
at about 2.30 or 3.00 p.m. the complainant brought the appellant to Police Station, handed over one number fake/counterfeit currency note to police, which was taken into possession
and sealed in parcel No. 1, while PW -1 had mentioned the time of occurrence at about 4.30
p.m. Though the said parcel was exhibited through PW -3 as Ex.P/3- A, but admittedly the
said parcel did not contain the signatures of this witness. PW -3 also contradicted the
statement of PW -2, who had stated that in the police station the personal search of appellant
was resulted into recovery of 16 -Nos currency note. PW -4 Haroon Rasheed, ASI, is the
Investigating Officer of the case, who counted the steps taken by him during the course of
investigation. This witness has also not produced the details/list of counterfeit currency notes that were recovered from the possession of appellant. PW- 4 admitted that no parcel was
produced in the Court. He also admitted that the statement of no private witness was recorded. This witness further admitted that no inquiry in this case was carried out.
7. The reappraisal of entire evidence produced by the prosecution appears to be
untrustworthy. The I.O. conducted a poor investigation. Though the prosecution has alleged
that besides the note in question that was handed over to police by the complainant, the
recovery of remaining 16- Nos currency notes were recovered from the possession of
appellant, but the entire prosecution case is silent with regard to details, numbers and denominations thereof. Even it is not confirmed that whether 15 or 16- Nos of counterfeit
currency notes were recovered from the possession of appellant. The complainant states that after recovery of counterfeit currency note, the appellant was entrusted to police patrolling
party at the spot, while the remaining PWs contradicted his statement and stated that PW -1
himself produced the appellant in police station.
8. Admittedly, the case of prosecu- tion is doubtful, but unjustifiably the benefit of such
doubts was not extended in favour of the appellant. Needless to emphasize that accused was
entitled to be extended benefits of doubt as a matter of right. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345,
wherein the Hon'ble Supreme Court has held as under:
"The concept of benefit of doubt to an accused is deep- rooted in our country. For
giving him benefit of doubt it is not necessary that there should be many
circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the reasons discussed hereinabove, the appeal is accepted, the impugned judgment
dated 15th March 2022 passed by learned Additional Sessions Judge -X Quetta is set aside
and while extending the benefit of doubts, the appellants Shabir Ali son of Muhammad Ali, is acquitted of the charge. The appellant being in custody, shall be released forthwith, if not required in any other case.
Above are the reasons of my short order dated 1st April, 2022.
SA/47/Bal. Appeal accepted.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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