JUDGMENT ABDUR RAHMAN FARUQ PIRZADA, J. - This Crl. Appeal filed by Abrar Ahmed alias Abrar is directed against the impugned judgment dated 18.10.2004 passed by the learned Sessions Judge, Malir, Karachi, in Sessions Case No. 148/2003, State Vs. Abrar Ahmed, vide Crime No. 60/2003, PS Sharafi Gotth, for offences under Section 489- A, 489-B and 489-C, PPC thereby convicting the appellant/accused for an offence punishable under Section 489-B, PPC and sentencing him to undergo R.I. For four years and to pay fine of Rs. 20,000/- and in default thereof he had to undergo R.I. For two months more.
2. The F.I.R. Was lodged by complainant Noor-ul- Amin at PS Sharafi Gotth, Landhi Town, Karachi, on 26.4.2003 at 10.25 a.m. As briefly stated, the prosecution case is that the complainant resided near Jamia Masjid, Future Colony, Landhi and was running a shop at future more in the name and style of Swabi Wali Nawar Farosh. On the day of incident, the complainant alongwith his brother Ashique Amin was sitting in the shop when at about 8.45 a.m. Accused came to his shop and asked for "answer" for Rs. 10/- while giving the currency note of Rs. 500/- denomination. The complainant saw the note, which appeared to be forged one, whereupon he took the currency note to the neighbour PW Sajjad who also confirmed that the currency note was fake whereafter, the complainant alongwith PW Ashiq Amina and Sajjad took accused Abrar Ahmed alongwith the forged currency note bearing No. CT- 2319661 of Rs. 500/- denomination to PS Sharafi Gotth where the complainant lodged the F.I.R.
3. After registration of the F.I.R., ASIP Abdul Qayyum Khan of PS Sharafi Gotth arrested the accused and recovered the currency note. Such mushirnama of arrest of accused and recovery of currency note was prepared on the same day at 10.35 a.m., in presence of mashirs Sajjad, Arshad Khan and ASIP Israr Ahmed. On 26.4.2003, ASIP Muhammad Ishaque Awan visited the wardat and prepared such mushirnama in presence of Arshad Khan and Israr Ahmed. He then sent the recovered currency note to State Bank of Pakistan for verification. He also recorded the statements of the prosecution witnesses and after investigation challan was submitted in the Court.
4. The formal charge was framed against the accused/appellant for offence under Sections 489-A, 489-B and 489-C, PPC, to which he pleaded not guilty and claimed trial.
5. The prosecution in support of its case, examined total five witnesses viz. PW-1, Noorul Amin, who produced the F.I.R., memo, of arrest of accused and recovery of currency note and memo, of inspection of place of occurrence, PW-2 Sajjad, PW-3 Muhammad Ibrahim, Manager MCB, Landhi Branch, who produced the letter addressed to the MCB, Dawood Chorangi Branch, Karachi. PW-4, SIP Abdul Qayyum and PW-5 SIP Muhammad Ishaque who produced the reports of State Bank of Pakistan. Thereafter, the prosecution side was closed by the learned Attorney, vide his statement.
6. The statement of accused under Section 342, Cr.P.C. Was recorded wherein he denied the allegations against him. He did not examine himself on oath, but one witness namely Maqbool was examined in his defence.
7. The learned Trial Court formulated the following points for determination:--
(1) Whether on 26.4.2003 at 8.45 a.m. Inside the shop of the complainant situated at Future Colony, Karachi, accused Abrar Ahmed son of Muhammad Zaman, had in his possession a forged currency note of Rs. 500/- denomination bearing No. CT-2319661, knowing the same to be forged and intending to use the same as genuine?
(2) What offence, if any, has been committed by the accused?
After proceeding with the case, the learned Trial Court gave its findings as under:-- Point No. 1 In affirmative.
Point No. 2 Accused convicted.
8. Learned counsel for the appellant has submitted that the prosecution case is not free from doubt and the prosecution has failed to discharge its burden to rove the case beyond any reasonable doubt. He has submitted that as per the evidence, the appellant/accused was neighbour of complainant party and he frequently used, to visit the shop of complainant for purchase of "naswa r". However, it was for the first time that accused was involved in the case of forged currency note, on the basis of alleged recovery of the same currency note from him.
Learned counsel for the appellant has submitted that even the recovery of currency note from the appellant/accused is doubtful since PW-2 Sajjad, the mashir, did not support the prosecution case while clearly stating in his deposition that he had not gone to police station and that mashirnama was not read over to him, as such he could not say what was written in it. PW-2 Sajjad also deposed that he had only put LTI on mashirnama and that his LTI was obtained at the shop of the complainant by the police. He also stated that he could not say whether the currency note was forged or genuine, but he was so informed by the nearby shop keepers.
9. Learned counsel for the appellant further submitted that mens rea is the most important ingredient of Section 489-B, PPC and the same is lacking in the present case. He has submitted that even if the recovery from accused is established, even then his own knowledge that the currency note was forged and he had actually the intention to handover the forged note to any person, was necessary to be proved. He has submitted that even the factum that this currency note was forged one, was not properly proved/verified through a responsible officer of State Bank of Pakistan, whose evidence was necessary to be recorded in order to establish the charge under Section 489, PPC. In the present case, it has been submitted that only the certificates of the Deputy Currency Officer, SBP, produced by the I.O. But the said officer himself was not examined in order to prove the allegations of prosecution. According to learned counsel, officer of SBP was not immune from giving evidence under the provision of Section 510. Cr.P.C.
10. Learned State Counsel, Mr. Z.K. Arif, has supported the impugned judgment while stating that there is evidence of impartial and fair witnesses available on the record, who have clearly implicated the appellant/accused in the present case. There is credible evidence on the point of recovery of currency note from accused. Evidence of PW-4, Muhammad Ibrahim, Manager MCB, Landhi Branch, has come on the record with regard to forged currency note, so also the certificates of the concerned officer of State Bank of Pakistan were duly produced by the I.O.
11. I have carefully considered the submissions made by the learned counsel for the appellant and the learned State Counsel.
From the evidence on record, as alleged, the currency note was in possession of appellant/accused and the same was handed over to the complainant for the purpose of purchasing "naswa r" of Rs. 10/-. Later, the complainant while suspecting the currency note to be forged, took the same to PW-Sajjad who also verified the same fact. Thereafter, the accused alongwith same currency note was taken to police station.
12. As per mashirnama of arrest of accused and recovery of currency note dated 26.4.2003 at 10.35 a.m., the accused was produced at police station by the complainant party, and the currency note was handed over, presumably by complainant, to the SHO, in presence of mashirs Sajjad, Arshad Khan and ASIP Israr Ahmed. It was clarified by PW- 4 Abdul Qayyum, the SHO, that the currency note was produced at police station by complainant Noorul Amin. Out of the above-mentioned three mashirs, only one mashir viz. PW-2 Sajjad was examined, and it is clear from his deposition that he did not fully support the prosecution case. Admittedly, he stated that the mashirnama was not read over to him, as such he could not say about the contents of mashirnama, and that he had only put his LTI on one mashirnama (although as per prosecution case this PW Sajjad acted as mashir for two mashirnamas). He also stated that his LTI on the mashirnama was obtained by the police at the shop of the complainant. In view of this testimony of PW/mashir Sajjad, even the recovery of currency note from accused would be rendered as doubtful. On the point of recovery, none of the remaining mashirs were examined, after the above damaging statement was given by Mashir/PW Sajjad.
13. On the point of mens rea or intention/knowledge of the appellant/accused with regard to the forged currency note, for the sake of convenience, the provision of Section 489-B may be reproduced as under:-- "489-B. Using as genuine forged or counterfeit currency notes or bank notes. - Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or banknote, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
14. It is clear from the bare reading of Section 489- B, PPC, that in order to constitute the offence under Section 489-B, PPC, a person must have the knowledge or have reason to believe that the currency note in question is forged or counterfeit. In the entire evidence produced by prosecution, not a single prosecution witness has spoken a word on this aspect of the case. It has not been stated clearly by any of the prosecution witnesses whether the accused had the knowledge or had reason to believe that the currency note used by him was forged or counterfeit. On the other hand, the accused has obviously pleaded that he did not hand over any such note to the complainant.
Moreover, on the point of knowledge/intention on the part of accused, the burden was entirely upon the prosecution to prove, its own case.
15. On the point of establishing that the currency note was actually the forged one or counterfeit, the reliance was placed by the prosecution on the word of complainant, PW-Sajjad, PW- Muhammad Ibrahim, the Manager of MCB and lastly on the certificates of Deputy Currency Officer, State Bank of Pakistan, through Investigation Officer. So far as the evidence of complainant and PW-Sajjad is concerned on the point of verification of the currency note to be forged, it may suffice to say that they are not the technical experts to give any final opinion. So far as the evidence of PW- Muhammad Ibrahim, Manager, MCB, Landhi Branch, is concerned, it is noted that the deposed that he had seen the note but returned the same to police after giving his own certificate. PW- Muhammad Ibrahim also stated categorically that his certificate had got no legal value as only the State Bank of Pakistan was authorized to give such a certificate. In view of his own testimony, the evidence of PW Muhammad Ibrahim on the point of certificate with regard to forged note, can easily be discarded.
16. Then the prosecution is left with the evidence of two certificates issued by Deputy Currency Officer, State Bank of Pakistan, regarding the forged note. It may be pertinent to reproduce the provision of Section 510, Cr.P.C. As under:-- "510. Report of Chemical Examiner, Serologist. - Any document purporting to be a report under the hand of any Chemical Examiner, Assistant Chemical Examiner to Government or of the Chief Chemist of the Pakistan Security Printing Corporation Limited or any Serologist, fingerprint expert or fire-arm expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may, without calling him as a witness be used as evidence in any inquiry trial or other proceeding under this Code."
17. It is evident from the contents of Section 510, Cr.P.C. That although a list of some experts is mentioned therein who are immune from giving evidence, but the officer of SBP is not included in the above category as mentioned under Section 510, Cr.P.C. On this point, the valuable reference may be made to the case of Azmat Khan vs. State (2000 P.Cr.L.J. (Kar.) 1461) in which it was laid down as under:- "The perusal of evidence adduced by the prosecution shows that appellant was found in possession of counterfeit currency notes. The essential ingredients for constituting an offence under Section 489-C, PPC are that prosecution has to prove that the currency notes recovered from the possession of appellant were forged or counterfeit and that he intended to us them as genuine or that they might be used as genuine. It is well settled that prosecution is not absolved from proving its case beyond any shadow of doubt, even if burden is shifted upon the accused. The police official is not expert to give opinion with regard to the genuineness or otherwise of any currency notes. It is the only expert who can say or give any opinion in that context. In the case in hand the Deputy Currency Officer of State Bank of Pakistan who issued certificate was not examined by the prosecution to substantiate the charge. The certificate issued by him was not immune under Section 510, Cr.P.C. Mere possession of forged currency notes is no offence. Thus, the prosecution miserably failed to prove the charge against the appellant."
18. In the light of the provisions of law and the above-cited authority of law, it may clearly be observed that mere possession of a forged currency note is not an offence unless the knowledge or intention on the part of accused is established beyond reasonable doubt. The case of Ali Asghar Vs. The State (1992 P.Cr.L.J, (Kar.) 1913) may also be referred to. In the said case, it was laid down as under:-- "13. Even if it is admitted for argument sake that the above forged currency notes were recovered from the possession of the appellants there is nothing on record to even faintly suggest that the appellants knew or had reason to believe that the same were forged. It may be noted that mere possession of forged currency notes is not an offence. The learned counsel for the appellants have referred me to a wealth of case-law commencing from 1931 down to the present day in support of their contention that the possession of the forged currency notes is punishable under Section 489- C, PPC when it is accompanied by an intention to use them as genuine. The first of these cases is the case of Bur Sing v. The Crown, reported in AIR 1931 Lah. 34, wherein it 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 489-C 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 lead clearly, indubitably and irresistibly to the interference 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 of 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."
"14. This view was followed in the case of Salvator Betvisi 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."
19. In support of the above observations, the cases as reported in 1993 P.Cr.L.J. 1909, 1988 P.Cr.L.J.
1553, 1992 P.Cr.L.J. 1913, 1971 P.Cr.L.J. 53, 1984 P.Cr.L.J. 1281,1988 P.Cr.L.J. 1553 and 1989 P.Cr.L.J. 1079 may also be relied upon.
20. In view of the foregoing discussion, I am of the considered view that the prosecution did not establish its case beyond reasonable doubt. Accordingly, this Cr. Appeal is allowed and the impugned judgment is set aside. Consequently, the appellant/accused is acquitted; he is on bail, and his bail bond stands discharged.