' The appellants have been convicted by a Magistrate of the First Class, with enhanced powers under section 30 Code of Criminal Procedure, 1898, Mardan, vide his judgment dated 21st March, 1990 for an offence under section 489-B, P.P.0 and sentenced to suffer rigorous imprisonment for six years and a fine of Rs,5,000 each or in default to suffer further simple imprisonment for one year each.
2. The case for the prosecution shortly stated was that on the 1st of November, 1988 at 07-30 hours Rehmatullah (P.W.1) was on his way to his fields in the limits of village Bala Garhi. In the meantime Raham Taj one of the two appellants and two others who were not known to him met him and expressed their desire to purchase the calf of his buffalo. The bargain was struck at Rs,1,200. Raham Taj appellant passed on 8 currency notes of Rs,100 denomination each to Rehmatullah and promised to pay the balance later on. Rehmanullah suspecting the notes to be counterfeit proceeded to show them to someone. Upon this Raham Taj and his co-culprits demanded the return of the said notes. On Rehmatullah's refusal to restore the notes to him, Raham Taj appellant, in order to intimidate Rehmatullah complainant pulled out his Tamacha and fired a shot in the air on account of which people were attracted. The culprits, on seeing them took to their heels.
Rehmatullah, therefore, went to his master, Ayub (P.W.) and showed him the currency notes. On seeing them, Ayub (P.W.) declared them to be counterfeit and accompanied him to Police Station, Shahbaz Garhi, where Rehmatullah (P.W.1) lodged the report Exh.PA. He also produced the eight counterfeit currency notes. He cited Zahir Gul, Tamash, and Mazullah his brother, as witnesses.
3. Fazliullah Khan, A,S.I., then attached to Police Station, Shahbaz Garhi, registered the case against two appellants and another person and secured the eight counterfeit currency notes of the denomination of Rs,100 each and sealed them into a parcel vide memo Exh.P.C. He recorded the statements of P.Ws. Under section 161, Cr.P.C.And challaned the appellants and another accused Javed to the Court to stand their trial. On 8-3-1989 Rehmatullah PW correctly identified Hukam Dad appellant in the identification parade held under the supervision of Habibur-Rehman, Naib- Tehsildar, Mardan (P.W.). He could not, however, identify Javed accused since acquitted. The memo Exh.P.E. Evidencing the identification aforesaid was prepared by Habib-ur-Rehman (P.W.) who testified to its correctness in the Court. During the investigation of the case, Raham Taj appellant and Javed accused were produced before Hayatullah Khan and Rehmatullah Khan, Magistrates of the First Class, Mardan, where Raham Taj appellant and Javed accused made judicial confessions respectively Exh.P.L. And Exh.P.K./2. The S.H.O. Police Station, Shahbaz Garhi, sent the eight currency notes aforesaid to the State Bank of Pakistan, Issue Department, Peshawar. The Currency Officer of the State Bank of Pakistan, Issue Department, Peshawar declared the said notes vide his opinion Exh.P.H. As forged and therefore, impounded them.
4. After the investigation of the case the two appellants and Javed accused where challaned to the trial Court to stand their trial.
5. The prosecution placed reliance on the ocular evidence of Rehmatullah and his brother Mazullah P.Ws., the report Exh.P.H. Of the Currency Officer, State Bank of Pakistan, Issue Department, Peshawar; the judicial confessions Exh.P.K./2 and Exh.P.L. Respectively of Raham Taj appellant and Javed accused, since acquitted and, the report of the identification parade Exh.P.E. Wherein Hukam Dad appellant has been picked up by Rehmatullah complainant.
6. Rehmatullah complainant has reiterated the allegations of the prosecution in the Court which he had narrated earlier in the F.I.R.. Exh.P.A.
7. Mazullah P.W., on his part, stated that he was attracted to the spot from Rehmatullah's house on hearing commotion outside the house and found Raham Taj appellant and two other persons standing with his brother Rehmatullah. He was striking bargain of selling his buffalo. Bargain was struck at Rs,1,200. Raham Taj appellant passed on eight currency notes of Rs,100 denomination each to Rehmatullah and promised the payment of the balance later on. His brother, however, got suspicious about the genuineness of the currency notes. Upon this Raham Taj appellant insisted the return of the said currency notes but his brother was not prepared to do so. There upon appellant `Raham Taj pulled out his pistol and fired at his brother for criminal intimidation'.
Thereafter the accused were alleged to have decamped from the spot.
8. The contentions advanced in this appeal were these:
(1) that there is absolutely no evidence against Hukam Dad appellant to have got any liability to pass on the counterfeit currency notes in question to Rehmatullah complainant and, therefore, his conviction and sentence was not sustainable;
(2) that the case against Raham Taj appellant which was sought to be proved from the ocular evidence of Rehmatullah and Mazullah P.Ws. Being highly interested had not brought home the guilt to Raham Taj appellant satisfactorily particularly, when Tamash Khan P.W. Cited in the F.I.R.
Who was disinterested was abandoned without any justification;
(3) that Rehmatullah the first informant who has been declared hostile by the prosecution could not have been relied upon for the conviction of the appellants;
(4) that Mazullah P.W. Who happened to be brother of the complainant and was thus interested should not have been believed because according to his own showing in the witness-box he was attracted to the spot on hearing the commotion and he could not have witnessed the passing on of counterfeit currency notes by Raham Taj appellant to Rehmatullah complainant; and
(5) that the two confessions, one of Raham Taj appellant Exh.P.K./2 and another of Javed accused, since acquitted, Exh.P.L. Should not have been taken into consideration as both the confessions were exculpatory.
9. Both the appellants when examined under section 342, Cr.P.C. Denied the prosecution case in toto, Raham Taj appellant not only disowned his judicial confession Exh.P.K./1 but also Exh.P.L. Made by Javed acquitted accused. So far as Hukam Dad appellant was concerned, he additionally maintained that he had not been charged in the F.I.R. And had not been identified by the complainant in the report Exh.P.E. Of the identification parade.
10. In so far as Hukam Dad appellant is concerned, Mr. Amjad Zia, the learned State counsel, conceded that neither his name has been mentioned in the F.I.R. Nor he had been shown to have participated in any manner in the commission of the offence under section 489-B, P.P.C. From the perusal of the record I find myself in agreement with this contention made by the learned State :ounsel. The name of the appellant Hukam Dad does not figure in the F.I.R. He was first named by Raham Taj appellant in his confessional statement Exh.P.K./2 wherein he also cited Javed acquitted accused to have spent a night in his house and that on the following day they went to the house of Rehmatullah; that Hukam Dad and Javed purchased a pistol from him and paid him Rs,800 whereupon Rehmatullah complainant declared the notes to be counterfeit as a result of which in the commotion that ensued both Hukam Dad appellant and Javed acquitted accused took to their heals whereas he himself was left on the spot. Obviously this confessional statement, being absolutely exculpatory, could not be made the basis either for the conviction of Raham Taj appellant or for that of Hukam Dad appellant. After going through the record I have formed the opinion that several circumstances militating against his guilty knowledge and belief of currency notes being forged are discernible on the record.He is, therefore, entitled to acquittal.
11. I, however, see no force in the contentions raised by the learned counsel for the appellants in so far as the prosecution case against Raham Taj appellant is concerned. In order to prove the offence under section 489-B, P.P.C., with which Raham Taj appellant has been charged, the prosecution is required to prove beyond any reasonable doubt the allegations that at the time when the accused was passing the counterfeit currency notes had the knowledge that the notes were forged and once this burden is discharged it is then for the accused to account for the possession of the forged currency notes and to prove his innocent possession thereof. The main question that calls for determination is whether Raham Taj appellant had passed on the counterfeit currency notes to Rehmatullah complainant with the knowledge or having reason to believe the same to be forged or counterfeit. In this context, we have the evidence of Rehmatullah complainant. From his testimony it is proved beyond any reasonable ground that eight counterfeit currency notes of Rs, 100 denomination each were passed on to him by Raham Taj appellant and that when he got suspicious and expressed his intention to get them examined, the appellant Raham Taj is proved to have demanded the money due to which the latter got infuriated and in order to intimidate the former he fired a pistol shot in the air. The learned counsel appearing on behalf of the appellants has attempted to discredit the testimony of Rehmatullah PW by saying that the evidence of Rahmatullah was not worthy of credence because he had been influenced by his master Muhammad Ayub with whom he had some differences. Nonetheless the learned counsel could not point out any such differences which could have prompted Rehmatullah P.W. To foist upon Raham Taj appellant the serious crime of using counterfeit currency notes as genuine.
After careful perusal of the evidence of Rehmatullah P.W. I have no doubt in my mind that there is no reason as to why he should not he believed. In so far as evidence of Mazullah PW is concerned, even if his claim to have been attracted to the spot on commotion from inside the house of his brother is not established still his testimony on the point that appellant Raham Taj insisted upon the return of currency notes from his brother and that he was not ready to meet the said demand of Raham Taj appellant, is a sufficient corroborative piece of evidence of the testimony of Rahmatullah PW. Both PWs Rehmatullah and Mazullah have been extensively cross-examined by the defence and there is nothing in their deposition from which it could be inferred that they were foisting crime of using counterfeit currency with the guilty knowledge upon Raham Ta appellant.
12. Lastly, the learned counsel for the appellants urged that Raham Taj appellant has been dealt with rather harshly in the matter of sentence. The object of the Legislature as held in Bikha Ram v King Emperor AIR 1926 Lahore 72, in enacting section 489-B, P.P.C. Is to stop the circulation of forged or counterfeit currency notes by punishing all persons who knowing or having reason to believe them to be forged or counterfeit, do any act which will lead to their circulation. The imprisonment of six years and a fine of Rs,5,000 does not, therefore, seem to be harsh or excessive.
13. In the light of what has been observed above this appeal is partly accepted, the conviction and sentence of Hukam Dad appellant is set aside. He shall be released forthwith if not required in any other case. The appeal to the extent of conviction and sentence of Raham Taj appellant, however, stands dismissed.