' This judgment will dispose of two appeals, namely Criminal Appeal No,710 of 1993 (Malik Sabir Hussain v. The State) and Criminal Appeal No,760 of 1993 (Fazal Maalik v. The State) filed by the two convicts against the judgment, dated the 1st November, 1993, passed by the Additional Sessions Judge, Toba Tek Singh, convicting and sentencing them under sections 489-B and 489-C of the Pakistan Penal Code.
2. Briefly, the facts giving rise to these appeals are that on the 18th January, 1993, at 9-00 a.m. Malik Sabir Hussain appellant in Criminal Appeal No,710 of 1993, purchased 200 grams of red peppers from Muhammad Boota, the complainant and paid the price thereof in the form of one hundred rupee currency note (P.1) which was found to be counterfeited. Malik Sabir Hussain thereupon, ran away from the spot leaving behind the said counterfeit currency note and photo copy of his national identity card. The incident was witnessed by Haji Muhammad Ramzan son of Muhammad Saleem and Muhammad Aslam son of Fazal Muhammad residents of the Mohallah who also endorsed that it was a counterfeit currency note. Consequently, the matter was reported to the police and accordingly a case vide F.I.R. No,8 of 1993, dated 18-1-1993 was registered against the appellant at Police Station Pir Mahal, District Toba Tek Singh, under section 489-B of the Pakistan Penal Code. During the investigation, Malik Sabir Hudssain referred to involvement of Fazal Maalik, the appellant in Criminal Appeal No,760 of 1993, who was arrested on 22-1-1993 while alighting from a bus at the Pir Mahal Bus Stand. On his personal search, genuine currency notes of Rs,100, Rs,10, and Rs,5 denomination (P.200 to P.202) amounting to Rs,555 were recovered. He was also found in possession of counterfeit currency notes (P.2 to P.194) of Rs,100 denomination.
3. Malik Sabir Hussain appellant was charged under section 489-B of the Pakistan Penal Code, while Fazal Malik was charged under sections 489-B and 489-C of the Pakistan Penal Code. Mian Abdul Latif, Additional Sessions Judge, Toba Tek Singh, who tried the case found both the accused- appellants guilty of the aforesaid offences and accordingly by his order, dated 1-11-1993, convicted them under section 489-B of the Pakistan Penal Code and sentenced them to life imprisonment and fine of Rs,25,000 each and in case of default in payment of the fine, they were required to undergo further rigorous imprisonment for four years. Fazal Maalik appellant was also convicted under section 489-C of the Pakistan Penal Code and sentenced to 7 years' rigorous imprisonment and a fine of Rs,25,000. In case of default in payment of the fine, he was further required to suffer 1 year's R.I. Both the sentences were, however, ordered to run concurrently. The convicts were also given the benefit in the sentence of imprisonment available under section 382-B of the Criminal Procedure Code. Both the convicts have filed separate appeals against the said order of the learned Additional Sessions Judge assailing their conviction and sentence.
4. With the minor variations, generally the facts as narrated in the preceding paragraphs are admitted and the appeals had been filed mainly on the legal plane. Mr. M.A. Zafar, Advocate learned counsel for Malik Sabir Hussain appellant contended that Malik Sabir Hussain was not aware that he was presenting a counterfeit currency note to Muhammad Boota the complainant, for purchase of 200 grams of red peppers. In order to disclose his identity and to prove himself a genuine customer who had no knowledge of P.1 being a counterfeit currency note nor had any intention to use such currency, he had himself presented copy of his national identity card (P.I./A) to the complainant. In support of these contentions he referred to the statement of complainant who appeared as P.W.3 wherein he had denied a suggestion during cross-examination that the copy of the identity card had been given to him by Malik Sabir Hussain himself. On the other hand, Muhammad Ramzan P.W.4 had during cross-examination, stated that the said copy was fallen when Malik Sabir Hussain had run away from the place of occurrence. On the basis of the statements of the complainant (P.W.3) and Muhammad Ramzan (P.W.4), a witness of the occurrence, learned counsel for the appellant contended that for conviction of a person under section 489-B of the Pakistan Penal Code, it is essential that such person should either "sell to, or buy or receive from, any other person, or otherwise traffic in or use as genuine, any forged or counterfeit currency note or bank-note knowing or having reasons to believe the same to be forged or counterfeit". It was thus contended that no doubt the appellant could be said to have used a counterfeit currency note of Rs,100 denomination (P.1) by presenting it to the complainant for purchase of red peppers, but certainly he had no knowledge of note (P.1) being a counterfeit one. The presentation of the copy of the national identity card is also a clear proof of his lack of knowledge of the same being not a genuine currency note. In this context he placed reliance upon Hamid Ali and another v. State AIR 1961 Tripura 40 wherein it was held that under sections 489-B and 489-C, guilt is fastened on the ground of "knowledge" or "reason to believe" so that a reasonable man must be convinced in his mind that note with which he was dealing was a forged one. He also referred to Hassan v. State 1984 PCr.LJ 1281 (Karachi) in which similar view was expressed.
5. The aforesaid statements of the complainant (P.W.3) and Muhammad Ramzan (P.W.4), an eye- witness of the occurrence, are however, not in conflict A with each other nor these prove that Malik Sabir Hussain appellant had himself produced the copy of his identity card (P.I./A) to disclose his identity. It is the claim of the appellant Malik Sabir Hussain that the counterfeit currency note (P.1) was given to him by Fazal Maalik appellant as price of poultry purchased from him. He had however, not given the details of the items of the poultry said to had been purchased by Fazal Maalik nor any evidence was led in support of these contentions, particularly when Fazal Maalik accused had categorically denied that the aforesaid counterfeit currency note was given by him to Malik Sabir Hussain. Both the complainant and Muhammad Ramzan (P.W.4) who is an eye-witness of the occurrence have claimed that when the complainant informed Malik Sabir Hussain appellant that P.1 was a counterfeit note, he ran away from the spot. In this connection, the appellant had himself admitted in his statement recorded under section 342, Cr.P.C. That he had left the place because the complainant Muhammad Boota and P. Ws. Tried to apprehend him for taking to the police station. This whisking away from the spot is a clear indication that I he was in the knowledge that he was using a counterfeit currency note. Further, at the time of his arrest he was found to be in possession of Rs,376 genuine currency notes of the denomination of Rs,100, Rs,50, Rs,10 and Rs,5. He had purchased only 200 grams of red peppers for which he presented a forged currency note of Rs,100 while he was in possession of currency notes of smaller denomination which he had intentionally not used. The appellant had also C admittedly led to the apprehension of Fazal Maalik accused-appellant who had according to him given the counterfeit currency note (P.1) to him. Fazal Maalik was also found to be in possession of substantial amount of counterfeit currency notes.
6. These facts clearly prove that Malik Sabir Hussain was fully aware of fakeness of the currency- note (P.1) which he was using for purchase of red peppers. In view thereof, the learned Additional Sessions Judge had rightly convicted him under section 489-B of Pakistan Penal Code for knowingly using the counterfeit currency note.
7. As regards Criminal Appeal 760 of 1993 filed by Fazal Maalik appellant, it was contended by Mr. Zahid Nawaz Cheema, Advocate, that Fazal Maalik appellant's arrest was not made on the pointation of Malik Sabir Hussain but, in fact, Fazal Maalik was already in police custody since the 16th January, 1993, and was falsely implicated in the case. According to the appellant the counterfeit currency notes (P.2 to P.194) were actually recovered from Malik Sabir Hussain who had in connivance with the police got those planted upon him. Fazal Maalik appellant contended that he had only come to Pir Mahal to see GuI Zaman, Chowkidar for obtaining a job. According to Fazal Maalik appellant, on 16-1-1993 while he was coming from Peshawar via Rawalpindi, Faisalabad and Rajana, the police intercepted the wagon and searched all the passengers travelling in the wagon.
During this search, he had certain altercation with police party whereupon in connivance with the co-accused, he was falsely implicated in the present case. In this respect, he referred to plan Exh.P.I. Prepared by Muhammad Akram, A.S.-I. Showing place of arrest of Fazal Maalik appellant. In the said plan the date under the signatures of Muhammad Akram, A.S.-I. Is scribed as 18-1-1993. It was, therefore, urged that on the other hand police has falsely shown the date of arrest of Fazal Maalik being 22-1-1993. This discrepancy, according to the learned counsel for the appellant clearly indicates the falsehood of the prosecution case. It is, however, strange that when Muhammad Akram, A.S.-I. Who had appeared as P.W.7, no suggestion of any altercation with Fazal Maalik was put to him. As regards the date of 18-1-1993 specified on Exh.P.L./P.I., P.W.7 has clearly stated that this date was inadvertently mentioned therein. Fazal Maalik has also not brought anything on the record to show his enmity with the police or with Malik Sabir Hussain appellant who is, said to had planted a large number of counterfeit currency notes upon him. On the other hand, the statement of complainant Muhammad Boota (P.W.3), Muhammad Ramzan (P.W.4), Munir Ahmad, A.S.-I. And Muhammad Akram, A.S.-I. (P.W.7) are quite convincing to prove that counterfeit currency notes (P.2 to P.194) were recovered from the person of Fazal Maalik appellant.
8. The learned counsel representing Fazal Maalik also pointed out that the said recovery was bad in the eye of law as the provisions regarding search as contained in section 103 of the Code of Criminal Procedure were not adhered to. In support of his contentions, the learned counsel referred to Muhammad Ameen v. The State 1990 PCr.LJ 84 and Ali Asghar v. The State 1992 PCr.LJ 1913 wherein late Justice Qaiser Ahmed Hamidi had held that at the time of search respectable persons of locality should be present. In the present case, however, the circumstances are distinguishable.
Here, the police had not gone to the bus stand for making search of Fazal Maalik, but to apprehend him on the charge of delivering counterfeit currency note (P.1) to Malik Sabir Hussain accused. It was only at the time of his arrest that he was found in his person a substantial amount of counterfeited currency. It is true that some of the passengers should have been asked to witness the said recovery but it is also in the common knowledge that the people generally avoid to become witness particularly those travelling to other places. The inventories Exh.P.K. And Exh.P.L.
Contain the complete detail of genuine and fake currency notes recovered from the person of Fazal Maalik. Both these inventories bear the signatures of Munir Ahmad, A.S.-I. And Muhammad Arshad, Constable before whom such recoveries were made. The total value of genuine currency notes recovered from Fazal Maalik appellant is Rs,525 and that of counterfeit currency is 19,300. This is a substantial amount and as pointed out by the learned counsel for the State this was a huge amount and could not be planted by the police. It is also clear from the record that Fazal Maalik has not denied the recovery of counterfeit currency, but has simply claimed that it was planted upon him by co-accused Malik Muhammad Sabir. As pointed out earlier Fazal Maalik has not shown any enmity with co-accused Malik Sabir Hussain. Naturally, he had not pointed him at random as a person who had given him a forged currency note (P.1) who happened to be in possession of a large sum of fake currency. In his statement, Fazal Maalik had claimed that at the time of his arrest, the police had searched all the passengers of the wagon, meaning thereby that the police was genuinely looking for a person involved in dealing of counterfeit currency. He admittedly hails from North-West Frontier Province and claimed to had been coming to Pir Mahal in search of job through one Gul Zaman. But the said Gul Zaman was not produced to substantiate his claim. In view thereof, there appears no force in the contentions of Fazal Maalik appellant that counterfeit currency of Rs,19,300 (P.2 to P.194) in Rs,100 denomination was planted upon him by the co-accused or the police.
9. Nevertheless, there is quite a force in the contentions of the learned counsel representing Fazal Maalik appellant that the appellant could not be convicted under section 489-B of the Pakistan Penal Code as he had not used the forged currency nor there is any evidence that he was involved in trafficking or selling of counterfeit currency. In this connection, only Malik Sabir Hussain appellant had pointed out that Fazal Maalik had given the currency note P.1 to him. There is no other evidence in support of such allegation. Hence, in the case of Fazal Maalik appellant, the provision of section 489-B of the Pakistan Penal Code could not be invoked.
10. As regards the quantum of sentence in the case of Malik Sabir Hussain appellant under section 489-B, P.P.C. Certainly appears to be harsh. He is not a previous convict. He had fully cooperated with the police in apprehension of the person from whom he had allegedly received a fake currency note. On his pointation Fazal Maalik appellant was apprehended. The latter was also found in possession of a substantial amount of counterfeit currency. In view thereof, sentence of life imprisonment is reduced to 7 years' R.I. And fine of Rs,25,000 as already ordered by the learned Additional Sessions Judge, Toba Tek Singh. In case of default in payment of the amount of fine, the imprisonment of 4 years is, however, reduced to one year.
11. In the case of Fazal Maalik appellant, the conviction and sentence under section 489-B, P.P.C. Is set aside. The sentence of 7 years' rigorous imprisonment and fine of Rs,25,000 awarded under section 489-C of the Pakistan Penal Code and in case of default in payment of fine of Rs,25,000 the term of imprisonment of one year is, however, maintained. Both the appeals are accordingly accepted partly to the extent specified above. The appellants will be entitled to the benefit of section 382-B, Cr.P.C. As already ordered by the trial Court. The counterfeit currency notes P.1 to P.194 as directed by the trial Court shall be destroyed under the supervision of a responsible officer of the State Bank of Pakistan, while the genuine currency notes recovered from both the accused- appellants shall be confiscated in favour of the State.