' This appeal under section 410, Cr.P.C. Is directed against the judgment dated 1-11-1988, passed by Miss Mahjabeen IIIrd Additional Sessions Judge (East) Karachi, whereby the appellant was convicted for the offence under section 489-C, P.P.C. And sentenced to suffer R.I. For five years and to pay a fine of Rs,5,000 (Rupees five thousand) or in default R.I. For six months more.
2. On 22-8-1985, Safdar Sultan A.S.I. Of Airport Police Station was patrolling alongwith his subordinate staff when at 3-30 a.m. He received secret information that one person, who was present at the site of car parking, Terminal No,111 of the Airport, was trying to sell forged foreign currency. He, therefore, took Mashirs Muhammad Abbas and Gull Faraz and apprehended the present appellant, who was searched and from his possession 700 American dollars of different denominations were seized, which were found to be forged ones. On the same day at 4-30 a.m., the report of this incident was registered at Airport Police Station. After usual investigation the appellant was sent up to stand trial for the offence under section 489(c), P.P.C.
3. At the trial the prosecution has examined Mir Muhammad H.C. (P.W.l), Gul Faraz (P.W.2), Safdar Sultan A.S.I. (P.W.3), and Muhammad Abbas (P.W.4).
4. In his statement recorded under section 342, Cr.P.C. The appellant has denied the case of the prosecution. He claims to be a leader in P.I.A. And was asked by Safdar Sultan A.S.I. To carry the luggage of his cousin, which he avoided, hence implicated in this case falsely. The appellant did not examine himself on oath. He also adduced no evidence.
5. On the assessm ent of the evidence available on record, the learned Additional Sessions Judge found the appellant guilty for the offence under section 489(c), P.P.C. And convicted him accordingly.
6. I have heard Mr. Muhammad Ali Shaikh, learned counsel for the appellant and Mr. A.I. Qarni, learned counsel representing the State.
7. It is contended that the learned Additional Sessions Judge has not complied with the mandatory provisions of section 364, Cr.P.C., inasmuch as, she has not given certificate in her own hand that the examination of the appellant was made in her presence and hearing and that the record contained a full and true account of statement made by him. The perusal of statement of appellant recorded under section 342, Cr.P.C. Confirms this legal infirmity. Even the signatures of the appellant were not obtained on his statement.
8. The absence of certificate as required under subsection (3) of section 364, Cr.P.C. Is not a mere irregularity, but an illegality not curable under section 537, Cr.P.C. The cases reported as Munshi v.
The State 1985 P Cr. L J 1677, Muhammad Inayat and others v. The State 1985 P Cr. L J 469, Sabia Raza Nadeem v. The State 1.986 P Cr. L J 1948 and Allanditta v. The State 1986 P Cr. L J 1987 are relevant in this behalf. In ordinary course I would have remitted the case to the learned Additional Sessions Judge for retrial, but I feel inclined to allow the appeal on merits, hence remand of the case is not necessary.
9. The points requiring proof in a case under section 489(c), P.P.C. Are:-
(i) That the currency notes were forged or counterfeited.
(ii) That the accused was in possession of the notes.
(iii) That at the time of his possession he knew them to be forged or had reasons to believe them to be so.
(iv) That he intended to use them as genuine, or that they might be used as genuine.
10. The fact that the appellant was found in possession of American dollars is hardly open to any doubt. Besides the evidence of Safdar Sultan A.S.I. (P.W.3) and Mir Muhammad H.C. (P.W.1), there is evidence of two independent witnesses, namely, Gul Faraz (P.W.2), and Muhammad Abbas (P.W.4) who have testified that currency notes of 700 dollars were secured from the possession of the appellant. Nothing is brought out in their cross-examination to shake their credence.
11. There is, however, no iota of evidence on record to prove that these currency notes were either forged or counterfeited. The notes were not sent to State Bank of Pakistan for examination and report. No expert was examined to testify that the notes secured from the possession of the appellant were forged or counterfeited. The notes were also not sent to American Embassy for getting the same examined from Federal Bank of United States. The notes cannot be proved to be forged only because two police officers having no special knowledge come forward and say that they are forged ones. An important link connecting the appellant with the offence with which he is charged was, therefore, missing in this case.
12. Mere possession of forged currency notes is again no offence. The knowledge that they were forged ones, as well as intention to use them are necessary to bring home charge against an accused person. It was held in Bur Singh v. The Crown, reported in AIR 1931 Lah. 34, that: "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 inference 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 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."
13. The same view was followed in Salvator Belvisi v. The State reported in PLD 1961 Kar. 342, and Amanat Ali v. The State reported in 1971 P Cr. L J 53.
14. Gul Faraz (P.W.2) who acted as Mashir in the case gives the following facts leading to this incident:- "The accused present in Court came in a taxi. His taxi driver told me and other persons sitting with me that accused got American dollars with him and he wanted to exchange them in Pakistani currency. One Abbas who used to exchange the American dollars agreed for the deal. When the accused gave him the American dollars, Abbas on examining them told him that the said Amercian dollars were counterfeited... "
15. Muhammad Abbas who figures as (P.W.4), is, however, silent about the aforesaid deal hinted out by Gul Faraz (P.W.2) in his evidence.
16. To bring a case under section 489(c), P.P.C. 'knowledge' or 'reason to believe' are necessary. It is clear that suspicion will not amount to sufficient cause to believe. The word 'believe' is a stronger word than 'suspect' and it involves the necessity of showing that the circumstances were such that a reasonable person must have felt convinced that the notes were forged or counterfeit. No such evidence is forthcoming in this case.
17. The finding recorded by the learned Additional Sessions Judge is based on mere surmise and not on any evidence. The surmise is a slender foundation for recording a conclusion.
18. For the foregoing reasons I accept the appeal and set aside the conviction recorded against the appellant.