All the above appeals have arisen out of the same judgment, hence for the sake of convenience they are being disposed of together.
2. Appellants, Ali Asghar (Criminal Appeal No.9 of 1991), Muhammad Ashfaque (Criminal Appeal No.10 of 1991), Fayyaz Ahmad (Criminal Appeal No.27 of 1991), and Muhammad Nawaz (Criminal Appeal No.39 of 1991), were tried by Mr. S. Mehmood-ul-Hassan Naqvi, I Additional Sessions Judge (Central) Karachi, for the offence under section 489-C, P.P.C., who found them guilty and vide judgment dated 10th January, 1991, sentenced each of them to suffer R.I. For four years and to pay a fine of Rs.1,00,000 (Rupees one lac) or in default to suffer R.I. For six months. The benefit of section 382,--B, Cr.P.C. Was also extended to them. By these appeals filed under section 410, Cr.P.C.
Separately,, the Appellants have challenged their conviction and sentence.
3. Briefly stated the prosecution story is that on 20-6-1990, Muhammad Riaz A.S.I., Nazimabad Police Station received secret information that some persons with forged currency notes were sitting in a car parked near K.E.S.C. Office, Gole Market, Nazimabad, Karachi. The Police Officer then collected two witnesses, namely, Haq Nawaz and Hussain Bux and reached the spot at 2-30 p.m. A cordon was put around the car and all the present appellants who were sitting in the car were apprehended and from their possession the currency notes shown against their names were recovered:-- {{TABLE}} (i)AliAsghar(Criminal Appeal No.9 of 1991)20 forged Pakistani currency notes of Rs.1,000 each.
(ii)Ashfaque Ahmad (Criminal Appeal No.10 of 1991)One forged Pakistani currency notes of Rs.1,000.
(iii)Fayyaz Ahmad (Criminal Appeal No- 27 of 1991)15 forged Pakistani currency notes of Rs.1,000 each and one 100 dollar American currency note.
(iv)Muhammad Nawaz (Criminal Appeal No.39 of 1991)15 forged Pakistani currency notes of Rs.1,000 each: {{TABLE}} Such inventory was prepared on the spot and a case being Crime No.284 of 1990, Nazimabad Police Station was registered against the appellants. The currency notes were sent to State Bank of Pakistan for examination and report. The Pakistani currency notes which were examined by an expert were found to be forged. After usual investigation all the four appellants were sent up to stand their trial.
4. At the trial the appellants pleaded not guilty and wanted to be tried. The prosecution examined Haq Nawaz (P.WA), Abdul Sattar, Bank Officer (P.W.2), Habib-ur-Rehman (P.W.3), Nazar Ahmad H.C.
(P.W.4), Hussain Bux (P.W.5), and Riaz Ahmad A.S.I. (P.W.6).
5. In their examination under section 342, Cr.P.C. The appellants have denied each and every allegation put to them. They have also examined themselves on oath under section 340(2), Cr.P.C.
In disproof of the charge.
6. On the assessm ent of evidence available on record, the learned Additional Sessions Judge found the appellants guilty for, the offence under section 489-C, P.P.C. And convicted them accordingly.
7. I have heard the learned counsel for the appellants and Mr. Habib-ur---Rasheed, learned counsel for the State. The latter has not supported the conviction recorded against the appellants.
8. The points requiring proof for an offence under section 489-C, P.P.C, are as follows:--
(i) That the currency notes were forged or counterfeited;
(ii) That the accused were found in possession of the said currency notes;
(iii) That the accused knew or had reason to believe that the said notes were forged or counterfeited;
(iv) That the accused intended to use the currency notes as genuine, or that they might be used as genuine.
9. The fact that the currency notes sent to State Bank of Pakistan were found to be forged is proved from the evidence available on record. The details of these currency notes with their number find place in the F.I.R. (Exh.16). The report submitted by Abdul Sattar, Assistant Treasurer, State Bank of Pakistan (Exh.10) makes it clear that the said notes were examined by the expert who found them forged. Abdul Sattar (P.W.2) when examined in Court gave the following reasons in support of his opinion:--- "I did not find water marks on all the notes and further they were uncut. The notes were also without threads. All the notes were of `B' Series bearing same number."
10. The evidence of the recovery of Pakistani forged currency notes from the possession of the appellants-is, however shaky and doubtful. Both Haque Nawaz (P.W.1) and Hussain Bux (P.W.5), who have acted as Mashirs of recovery are of dubious character. Haq Nawaz (P.W.1) a driver by profession has denied to have acted as Mashir in any case previously. He has even denied his acquaintance with the Police Officer and according to him it was by chance that he was picked up to act as Mashir. The copies of charge-sheets (Exh.17), (Exh.19) and (Exh.21), however, make it clear that this witness has acted as Mashir previously also and incidentally in two of the cases, viz. (Exh.19), and (Exh.21), Muhammad Riaz, A.S.I. Was the Investigating Officer. It, therefore, does not require much of calculation how to multiply 2 by 2.
11. Hussain Bux (P.W.5) who acted as co-Mashir of the alleged recoveries is admittedly a previous convict. He is also facing trial of a case under Article 3/4 of The Prohibition (Enforcement of Hadd)
Order, 1979, for the alleged recovery of the powder of heroin from his possession. The witness at his own showing was convicted in a case under section 294, P.P.C. For doing an obscene Act in public place. The evidence which has come on record makes it clear that about 150 persons had collected at the time when the police had raided the car in which the appellants were found sitting.
It is amazing that none out of those persons- was selected to act as Mashir and instead Muhammad Riaz A.S.I. (P.W.6) selected two witnesses who appear to be their touts and stock witnesses. No reliance can, therefore, be placed upon the evidence of such witnesses who are under the thumb of police officials and could depose in the manner as dictated by them.
12. Besides the above infirmity the evidence of both these Mashirs, namely, Haq Nawaz (P.W.1), and Hussain Bux (P.W.5) is contradictory. Haq Nawaz (P.W.1) has belied the version of Muhammad Riaz, A.S.I: (P.W.6) about the recoveries. He has also admitted in plain terms that the Mashirnama of recoveries was prepared at the police station. Thus, there is no satisfactory evidence on record to prove that the forged currency notes shown in para. 3 ante, were recovered from the possession of the respective appellants.
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, P.P.C., 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 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:"
14. This view was followed- in the case of Salvator Belvisi 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 Belv7si 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."
15. The cases of Amanat Ali v. The State reported in 1971 P Cr. L J 53, M. Mammutti v. State of Karnataka reported in AIR 1979 SC 1705, Hassan v. The State reported in 1984 P Cr. L J 1281, Shafiquo Sajid v. The State reported in 1988 P Cr. L J 1553 and Ashraf Mian v. The State reported in 1989 P Cr. L J 1079, also support the aforesaid view. I cannot do better than quoting the weighty observations of their Lordships of the Supreme Court of India in the case cited at S. No.(iii), in extenso:-- "The appellant has been convicted in this appeal under sections 489-B and 489-C and has been sentenced -to R.I. For one year and to R.I. For six months respectively and fine of Rs.500. The sentences have been directed to run concurrently. The learned counsel appearing for the appellant has stated that it is true that the appellant was found in possession of a counterfeit two rupee note and the accused handed over the note to a friend to purchase a ticket for a circus show. The booking clerk on seeing the note got suspicious. He immediately informed the Sub- Inspector of Police and on search of the appellant 99 two rupee notes were recovered. The appellant in his statement under section 342, stated that two days ago he sold three quintals of tamarind fruits to a person whom he did not know and that person gave him a sum of Rs.390: These currency notes have been given to him by the purchaser. He also said that he did not know that these currency notes were counterfeit and he came to know of it for the first time when he was interrogated by the police. There is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit note. Nor was any such question put to the accused under section 342, Cr.P.C. The High Court has affirmed the judgment of the learned Sessions Judge on the ground that in his statement under section 342, made before the committing Court the accused has made a statement different from that made in the Sessions Court and therefore, the appellant had reason to believe that notes in his possession were counterfeit notes. There the High Court is not correct because even in the statement before the Committing Court in Exh.P.13 which appears at p.154 of the paper book, the appellant has stuck to, the same statement which he made before the Sessions Court that he had sold three quintals of tamarind fruits and from the purchaser he received a sum of Rs.390 in two rupees notes. We are not able to find any inconsistency between the answer given by the accused in his statement under section 342, before the Sessions Judge and that before the Committing Court specially on the point that the appellant had the knowledge or reason to believe that the notes were counterfeit. Mr. Nettar submitted that one the appellant is found in possession of counterfeit notes, he must be presumed to know that the notes are counterfeit. If the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused knew that the notes were of such a nature. No such evidence has been led by the prosecution to prove the notes also. In these circumstances, it is impossible for us to sustain the conviction of the appellant. For these reasons, therefore, the appeal is allowed, conviction and sentences passed, on the appellant are set aside, and the appellant is acquitted of the charges framed against him."
16. In the face of such a clear pronouncement, the learned Additional Sessions Judge should not have overlooked this most important ingredient of section 489-C, P.P.C. There is no iota of evidence, on record, either direct or presumptive to prove that the appellants had reason to believe that the currency notes found in their possession were forged or that they intended to use them as genuine.
As indicated earlier mere possession of forged currency notes is not an offence.
17. Considering these, facts, I have been led to the conclusion that the appellants convictions are not warranted by the evidence produced against them in the case. Accordingly, I allow the appeals, acquitting them and setting aside their convictions and sentences. Appellant Fayyaz Ahmad (Criminal Appeal No.27 of 1991), who is in custody be released forthwith, if not required in any other case. The rest of the appellants are on bail and they are discharged from their bail- bonds.
18: By short orders dated 19-5-1992 I had allowed these appeals. These are the reasons for the said orders.
N.H.Q./A-1225/K