This is an appeal by convicts Liaqat son of Sher Ali and Faqir Saiq son of Shahbaz resident of Fatima, Tehsil and District Mardan, who are convicted under section 489-B/34, P.P.C. And sentenced to rigorous imprisonment for three years and a fine of Rs.2,000 etcetera by the learned Additional Sessions Judge, Mardan on 31-5-1995 in consequence of a trial originated from F.I.R. No. 110, dated 3-2-1994 of Police Station "B" Division, Mardan.
2. The two appellants at about 17-15 hours went to the shop of Obaid Shah at Par Hoti Chowk, Mardan and purchased three dozens of Red and Mite cigrettes. They tendered three currency notes of 100-rupee denomination which the shopkeeper suspected to be counterfeit. They were handed over to the police and a case under section 489/34, P.P.C. Was registered against them. They are convicted under section 489-B of the P.P.C.
3. There is no enmity proved between the complainant and the acc,lsed. The recovery is proved by the complainant Obaid Shah and the marginal witnesses of the recovery memo. Who are from the public. The three currency notes mentioned in Exh.P.C. Are proved to be counterfeit by Ihsanullall Officer of the State Bank who was examined as (P. W.5). In brief the recovery, as such, is proved and it is also proved that while making purchase when the currency notes were tendered, the two appellants were together in the shpp of Obaid Shah complainant. Had this been all, the conviction as well as sentence would have been perfectly legal but this legally was not all.
4. Two most important aspects of the case, required to be positively proved by the prosecution, were not at all proved. It is never alleged by the complainant as to which one of the appellants had tendered the notes in question. After all it could not be tendered by both at the same time. If offered and obviously by one of the appellants, it could never be presumed that the second one also had the intention of using the counterfeit currency notes as genuine.
5. When the case was discussed, learned State Counsel frankly conceded that there is no evidence on record whatsoever regarding the common intention of the accused except that they had come to the shop together. This by itself is not at all an evidence. Rather, any strong or weak presumption to such effect can also be not drawn. May be the currency notes are used by one with the total ignorance of the other who might simply be accompanying.
6. In criminal law the "mens rea" is always to be proved by the prosecution muchless the section in question where the factum of knowledge or having reasons to possess such knowledge is incorporated in the very section of law. Section 489-B makes the given act an offence only when the accused knows or has reason to believe that the notes used by him are forged or counterfeit. In the instant case the prosecution has brought not an iota of evidence either oral or circumstantial to the effect that the accused had the knowledge or had reasons to believe that the currency notes in question were either forged or counterfeit. This is a ground additional to the factum of common intention that required to be proved independently.
7. Neither the knowledge of any of the appellants nor the factum of common intention having at all been proved, one is never sure as to who offered the notes. If the evidence qua the tendering of notes is lacking and if* the evidence qua the common intention is also missing, both the accused are entitled to the benefit of doubt. This is in additional to the factum of knowledge that required to be proved independently.
8. Consequently, the appeal is accepted, the impugned conviction and sentence recorded under section 489-B/34, P.P.C. Through judgment, dated 31-5-1995 by Additional Sessions Judge-IInd, Mardan is set aside and the accused Liaqat and Faqir Said whose sentence is already suspended, are hereby acquitted of the charge under the aforesaid sections.