QAISAR AHMAD HAMID!, J.-Both these appeals have arisen out of the same judgment, hence they are being disposed of together.
2. Appellant Abdul Gharoor Bhatti son of Haji Muhammad Din and Abdul Ghafoor son of Ch. Ghulam Muhammad, both Kamboh by caste were tried by I Additional Sessions Judge, Sukkur, for the offence under section 489-B, 489- C, P.P.C., who found them guilty and sentenced each of them as follows:-
(i) ABDUL GHAFOOR BHATTI S/O HAJI MUHAMMAD DIN __________________________________________________ Under Section 489-C, To suffer R.I. For 70 years and P.P.C. To pay a fine of Rs.50,000/-or in default to suffer R.I. For one year.
(ii) ABDUL GHAFOOR S/O CH.GHULAM MUHAMMAD ______________________________________________
(a) Under section 489-B, P.P.C. To suffer R.I. For 10 years and to pay a fine of Rs.50,000/- or in default to suffer R.I. For one year.
(b) Under Section 489-C, P.P.C. To suffer R.I. For 7 years and to pay a fine of Rs.50,000/-or in default to suffer R.I. For one year.
Both the substantive sentences were to run concurrently. Both the appellants have challenged their conviction and sentence by filing appeals separately.
3. Complainant Fullam Qasim is a vendor at Rohri Railway Station. On 1.1.1988 he was present at the Railway Station on Platform No.3, when one passenger purchased 'Roti Kabab' from him for Rs.10/-.
The said passenger offered him a currency note of Rs.100/-. Since Fullam Qasim had no change he requested his colleague Muhammad Yaseen alias Kaloo for the change. Muhammad Yaseen alias Kaloo suspected the currency note and he called Jadal Khan, H.C., who was standing on the platform. Jadal Khan, H.C., also suspected this currency note and he caught-hold of the passenger,. Who disclosed his name as appellant Abdul Ghafoor son of Ch. Ghulam Muhammad (Cr. Appeal No.105 of 1992).'A search of this appellant was taken by Jadal Khan, H.C., which led to the recovery of some more currency notes which were forged. On interrogation appellant Abdul Ghafoor son of ChiGhulam Muhammad led the police party to his compartment and pointed out towards appellant Abdul Ghafoor Bhatti son of Haji Muhammad Din (CrA.No.99 of 1992), who too was taken into custody and from the brief-case, which he was carrying a huge quantity of forged currency notes of Rs.100/-denomination was recovered. Both the appellants were taken to Railway P.S. Rohri, where Ghulam Qasim lodged FIR, which was recorded by Abdul Haq, SHO. During the course of investigation the currency notes which were seized from the possession of both the appellants were sent to State Bank of Pakistan, Karachi, where they were examined by Abdul Sattar, Assistant Treasurer, who found them to be forged one. After usual investigation both the appellants were sent up to stand trial.
4. The appellants pleaded not guilty to the charge and claimed a trial. At the trial the prosecution examined complainant, Fullam Qasim (P.W.-l), Muhammad Yaseen alias Kaloo (P.W.2), Jadal Khan, H.C. (P.W.3), Abdul Sattar, Assistant Treasurer (P.W.4), Muzaffar Khan, W.H.C. (P.W.5) and Abdul Haq, SHO (P.W.6).
5. In their statements recorded under section 342 Cr.P.C, the appellants denied the case of the prosecution. According to them the real culprits, who were employees of C.I.A., Karachi, were let off and they were involved in this case falsely. The appellants examined themselves on oath under section 340(2). Cr.P.C. They also examined Bashir Ahmad, the co-mashir in defence as (D.W-1).
6. On the statement of evidence available on record the learned Additional Sessions Judge found both the appellants guilty and convicted them for the offence: mentioned above. It is in these circumstances that both these appeals were filed.
7. I have heard learned counsel for the respective appellants and Mr Abdul Hakeem H. Bijarani learned AA.G. For State. The latter has supported the impugned judgment.
8. The case of the prosecution mainly hinges upon the testimony of Ghulam Qasim (P.W.1), Muhammad Yaseen alias Kaloo (P.W.2) and Jadal Khan, H.C (P.W.3). Out of them Ghulam Qasim PW-1 has not supported the case of the prosecution. On the contrary his evidence shows that the real culprits were let off and instead both the appellants who had an argument with the police party were involved in this case. Thus the evidence of Ghulam Qasim (PW.1) lends support to the case set up by the defence. Since Ghulam Qasim (P.W.1) was declared as hostile, his evidence is to be considered alongwith other direct and circumstantial evidence available on record.
9. Out of the remaining two witnesses, Muhammad Yaseen alias Kaloo (P.W.2) has tried to oblige both to the prosecution as well as to the appellants. His evidence shows that both the appellants were arrested by Jadal Khan, H.C., who took them to Railway P.S. Rohri, where the mashirnamas were prepared. Muhammad Yaseen alias Kaloo (P.W.2) has however, admitted in his cross- examination that he had filed affidavit before the trial Court (Ex.17) of his own free will in the following words:- "I, Muhammad Yasin alias kaloo son of Abdul Hakeem Pathan, Muslim, adult, Vendor at Railway Station Rohri, do hereby state on solemn affirmation as under:-
1. That on 1.1.1988, the above mentioned accused Abdul Ghafoor son of Ghulam Muhammad had a tussle with /the Head Constable Jadal Khan of Rohri Police Railway after the Super Express had arrived at platform No.3 of Railway Station Rohri at about 11.50 p.m. ,
2. That I was standing nearby and watching the scuffle of accused and Head Constable Jadal Khan when Head Constable arrested the accused, beat him and took out genuine currency note of Rs.5560/- from his possession that no counter-felt currency was found from the possession of the accused.
3. That the accused was taken to Rohri Police Station where my signature was taken on a blank sheet of paper which was later on converted into the mashirnama.
4. That 1 once again assert that no counter-felt currency was secured from the possession of accused Abdul Ghafoor son of Ghulam Muhammad.
5. That whatever is stated above is true and correct to the best of my knowledge, and belief."
9. No reliance can therefore, be placed upon a witness who has changed his version at different times. Since he is a vendor working at Rohri P.S., the possibility that he has deposed under the influence of Railway-Police, cannot be ruled out. At any rate his evidence cannot be made as a basis for convicting the appellants on such a serious charge, specially when it is contradicted by complainant Ghulam Qasim (P.W.1) and co-mashir, Bashir Ahmad (D. W'.l), who appeared on behalf of appellants, although basically he is a prosecution witness.
10. Thus we are left with the evidence of Jadal Khan H.C.(PW-3) alone, who has admitted in clear terms that mashirnamas were prepared at Railway P.S., by the SHO. His evidence also reveals that the forged currency notes were not sealed in his presence and consequently it cannot be said with certainty that the currency notes which were examined by Abdul Sattar, Assistant Treasurer, State Bank of Pakistan (PW-4) were the same which were allegedly recovered from the possession of both the appellants. It may be stated that Abdul Sattar, Assistant Treasurer (PW-4) has himself admitted that these currency notes were not received by him in sealed packet. As observed in the case of Hamzo and 2 others vs. The State, reported in 1972 P.Cr.LJ. 478, that the recoveries of such articles become doubtful when the mashirnamas are prepared at the Police Station.
11. During the course of arguments the learned counsel for both the appellants have contended that mere possession of forged currency notes is not an offence punishable under section 489-B, 489-C, P.P.C, unless there is evidence on record to show that the accused/appellants knew or had reason to believe that the same were forged. Reliance is place ' upon a string of cases starting from the year 1931. In the case of Bur Sing vs. The Crown, reported in AIR 1931 Lahore 34, 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."
12. This view was followed in the case of Salvator Belvisi vs. The State. Reported in PLD 1961 Karachi 342, wherein it was observed:- "But even if it be assumed that the 10 forged dollar notes of I0O 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."
13. The cases of Amanat Ali vs. The State, reported in 1971 P.Cr.L.J. 53, M. Mammutti vs. State of Karnataka, reported in AIR 1979 S.C., 1705, Hassan vs. The State, reported in 1984 P.Cr.L.J. 1281, Shafique Sajid vs. The State, reported in 1988 P.Cr.L.J. 1553 and Ashraf Mian vs. 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.(ii), 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 t6 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 once 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 counferfeit 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 nature of 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."
14. On the face of such a clear pronouncement the learned Additional Sessions Judge should not have over looked this important ingredient of section 489-B, 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.
15. Having regard to the above factual and legal position, I am of the view that the conviction recorded against the appellants cannot be sustained. Accordingly, I allow the appeals acquitting them and setting aside their conviction and sentences. Both the appellants who are on bail are discharged from their bail- bonds.
By a short order dated 19.1.1993,1 had allowed these appeals and these are the reasons for the said order.