ABDUL AZIZ KUNDI, J.---Hamid Yousaf son of Muhammad Yousaf, convict-appellant was tried by Additional Sessions Judge-VI, Peshawar in Case No.23/SC of 2009, arising out of F.I.R. No.67 dated 22-2-2009 of Police Station, Nasir Bagh, Peshawar for offence under section 489-B, P.P.C., on conclusion whereof he was found guilty of possessing counterfeit currency notes and accordingly convicted under section 489-C, P.P.C. And sentenced to two yearss' R.I. And fine of rupees five thousand, in default whereof to undergo further one month's S . I .
2. Per prosecution case laid down in the Murasila' Exh.PA/1, on the basis of which F.I.R. No.67 Exh.PA was registered at Police Station Nasir Bagh, Peshawar on 22-2-2009 at 14.05 hours. Muhammad Ayaz Khan, S.I. Of the said Police Station along with Falak Niaz and Shah Zaman Constables was present near Police Colony within the limits of Police Station, Nasir Bagh and busy in checking when convict-appellant Hamid Yousaf was suspected and accordingly searched, which resulted into recovery of twenty notes each of rupees five hundred denomination and forty notes each of rupees hundred denomination, thus making the total rupees fourteen thousand, which were counterfeit and accordingly taken into possession through recovery memo Exh.P.W.1/1, while the convict- appellant was also arrested and his card of arrest Exh.P.W.4/1 prepared.
3. On completion of investigation, complete challan was put before the trial Court for putting the convict-appellant to trial, who was formally charged for offence under section 489-B and C, P.P.C.
On 14-10-2009.
4. In support of its case, prosecution produced P. W.1 Shah Zaman, Constable No.816 being the witness of recovery memo. Exh.P.W.1/1. He testified that the currency notes Exh.P.1 were recovered in his presence by the Investigating Officer at 13.30 hours during `Naka Bandi' in front of Police Colony.
Abdul Latif, SHO, P.S. Nasir Bagh (P.W.2) had submitted complete challan against the convict- appellant on completion of the investigation.
Raydee Gul, ASI (P.W.3) had, on receipt of 'Murasila' correctly incorporated the same into F.I.R. Exh.
PA, which is in his hand and correctly bears his signature.
Muhammad Ayaz, S.I. Police Station Nasir Bagh (P.W.4) stated on oath that on 22-2-2009 at 13.30 hours, he along with Falak Niaz and Shah Zaman was present on the spot in connection of 'Naka Bandi', when in the meantime appellant who came from Nasir Bagh side was accordingly stopped and on search were recovered twenty forged currency notes each of rupees five hundred denomination and forty notes, each of one hundred denomination, and taken into possession, vide recovery memo Exh.P.W.1/1. And that he drafted `Murasila' Exh.PA/1 and accordingly sent the same to P.S. For registration of the case besides arresting the convict-appellant, vide card of arrest Exh.P.W.4/1. In his cross-examination, he stated that the currency notes recovered were sealed into parcel and then handed over to the Investigating Officer in the Police Station and that he has not associated any public witness with the recovery proceedings and that he found the notes to be forged because of his experience.
Saeedullah Khan, Deputy Currency Officer, State Bank of Pakistan, Peshawar, was examined as P.W.5, who was authorized by the Currency Officer to appear on his behalf and record his statement vide Authority Letter Exh.P.W.5/1 and being acquainted with Signature of Ikram Khan, Currency Officer, State Bank of . Pakistan, Peshawar testified Exh. P.W.5/2 and Exh.P.W.5/3, to be correctly bearing signatures of said Ikram Khan, Currency Officer.
Imran Khan, S.I. Police Station East Cantt. Then posted as S.I. At Police Station Nasir Bagh, had investigated the case and recorded his statement as p.W.6. He referred to application Exh.P.W.6/1 having been drafted by him to the Incharge State Bank of Pakistan for examination of the recovered Fake Currency Notes; also produced the accused before the court and obtained police custody, vide application Exh.P.W.6/2 and thereafter vide his application Exh.P.W.6/3, the accused was remanded to judicial lock-up. He also received report of the Currency Officer and placed the same on the file. In addition, he had interrogated the convict-appellant and also recorded statements of the P. Ws. Under section 161, Cr.P.C.
The convict-appellant in his statement under section 342, Cr.P.C. Denied whatever was alleged against him, but did not opt to produce any defence evidence or examine himself on oath.
5. After hearing the arguments, the learned Judge of the trial Court, through impugned judgment dated 5-7-2010, came to conclude that mere possession of counterfeit currency is fully proved and established and accordingly convicted the appellant for offence under section 489-C, P.P.C. And sentenced to, two years' R.I. And a fine of rupees five thousand, in default whereof to undergo further one month's S.I.
6. Learned counsel for the appellant vehemently argued that prosecution has miserably failed to prove its case against the convict-appellant, and in the absence of any evidence to sustain the said conviction and sentence, the impugned judgment of conviction is liable to be set aside. While referring to provision of sections 489-B and 489-C, P.P.C., it was argued that under the provisions of section 489-B, P.P.C., it is selling, buying or receiving from any other person or otherwise trafficking in/or using as genuine any forged or counterfeit currency notes or bank note knowing or having reasons to believe the same to be forged or counterfeit to be punishable and that under the provisions of section 489-C, P.P.C., possession of any forged or counterfeit currency note or bank- note, knowing or having reasons to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, which has been made punishable under the said provision of law and that in the instant case, the prosecution evidence is conspicuous by absence of knowledge or having reasons to believe the same to be forged or counterfeit and that the convict-appellant intended to use the same as genuine or that it may be used as genuine and that such a charge has not even been remotely made against the convict- appellant in the prosecution evidence and that mere possession would not be sufficient to sustain a judgment of conviction. In support of her submissions, learned counsel placed reliance on case reported as 2010 PCr.LJ 198 Karachi, titled (Muhammad Aslam v. The State), where the court proceeded to hold as under:-- "S.489-C---Appreciation of evidence---Police Officers despite having spy information had failed to associate independent persons of the locality with search proceedings violating mandatory provisions of section 103, Cr.P.C. ---Prosecution had not proved on record that the accused had been arrested with forged currency notes and that they had the knowledge of the currency being forged---Basic requirement of section 489-C, P.P.C., thus, was not fulfilled by prosecution---Mere possession of forged currency notes was no offence, knowledge that the same were forged as well as the intention to use them, were nece ;a ry to bring home charge against the accused-Trial Court ha( not applied its judicial mind in arriving at the conclusion --Impugned judgment was based on mere surmises and not on the evidence brought on record---Accused were acquitted in circumstances. [p.201] A, B, C & D." (Underlining is by me to lay emphasis).
7. As against that, learned counsel for the State opposed the submissions of the learned counsel for the appellant and argued that on proper appraisal of evidence and application of correct law, the trial Court has passed judgment of conviction and sentence which calls for no interference by this court in the instant appeal.
Arguments heard. Record perused.
8. In the instant case, the gist of evidence, reproduced above, would show that it had never been the case of the prosecution that the convict-appellant had the knowledge or having reason to believe that the counterfeit currency notes were in fact forged or counterfeit and further that he intended to use the same as genuine or that it may be used as genuine. This basic and mandatory requirement of law having not been fulfilled, the case of the convict-appellant is fully covered by the judgment relied upon by the learned counsel for the convict-appellant. In addition to this, the question was considered by this court in the case of Gul Mali Khan v. The State (2004 M LD 145), and by Karachi High Court, in the case of Azmat Khan v. The State (2000 PCrLJ 1461), reiterating the same principle and interpreting the provision of section 489-C, P.P.C., by holding that mere possession would not be sufficient to sustain a finding of conviction and that the prosecution was not absolved from proving its case beyond any shadow of doubt.
In the instant case, as held above, prosecution hat miserably failed to meet the requirement of section 489-C, P.P.C. Sustaining a conviction and sentence for the said offence. Learned Additional Sessions Judge while convicting the appellant has found his "mere possession" and then without caring for essentials of section 489-C, P.P.C. Proceeded to pass the impugned judgment on 5-7- 2010, in Case No.23/SC of 2009, which is not sustainable and thus by accepting this appeal, the same is set aside, the convict-appellant Hamid Yousaf is acquitted of the charge levelled against him and he be set free forthwith, if not required in any other case.