' Appellant Imran Saeed was tried alongwith co-accused Sher Bahadur (since acquitted) by the learned Sessions Judge, Haripur, on a charge under section 489-B. P.P.C. Vide judgment, dated 6- 6-2000 the learned Sessions Judge convicted the appellant under the aforesaid section of P.P.C.
And sentenced him to undergo R.I. For one year with a fine of Rs,5,000, in default whereof to suffer S.I. For three months. However, co-accused Sher Bahadur was extended benefit of doubt and acquitted of the charge.
2. Aggrieved by his conviction, the appellant has preferred the instant appeal, which is being disposed of through this judgment.
3. The prosecution story in brief is that on 22-4-1998 at about 17-45 hours, a young boy of 27/28 years of age, who subsequently disclosed his name Imran Saeed, came to the shop of Ghulam Kibria in Panian Chowk Haripur and gave him a note of Rs,100 denomination for the purchase a milk-pack. The note having been found forged, Ghulam Kibria caught hold of the boy foiled his attempt to run away from the spot and handed him over to P.W. Khawaj Muhammad, I.H.C., Police Station Haripur, who happened to be on a Gushat of the Bazar alongwith P. Ws. Mumtaz and Muhammad Arshad F.Cs. Khawaj Muhammad drafted the Murasila (Exh.P.A./1) in this respect and despatched the same to police station where it was incorporated in F.I.R. (Exh.P.A.) by P.W. Saiful Malook the then S.H.O. Police Station, Haripur. Khawaj Muhammad also prepared recovery memo.
(Exh.P.W.3/1) regarding the note in question (P.1) bearing No,FFY8933694. During the investigation the appellant claimed to have obtained the note from Sher Bahadur co-accused as sample. The house of the co-accused was raided but the co-accused was not found in the house. However, one currency note of Rs,1,000 denomination bearing No,S5620433 was recovered. Both the notes sealed into parcels, were sent to Manager, State Bank of Pakistan, Peshawar vide application Exh.P.W.3/1 for opinion and report. Per reports Exh.P.X. And Exh.P.Z. Of Muhammad Aslam Khan, Currency Officer, the notes were found forged. Proceedings under section 204, Cr.P.C. Read with sections 87/88 thereof were initiated against the co-accused. Consequently, the co-accused was arrested who in his statement recorded under section 342, Cr.P.C. Refuted the prosecution allegations and claimed to have been falsely charged.
4. The prosecution in order to prove its case, produced as many as 7 witnesses. S.H.O., Sardar Muhammad Hanif P.W.1 appeared in Court and admitted having submitted complete challan against the accused. Muhammad Shafique P.W.2 stated that on the day of occurrence he was purchasing cigarettes from the shop of Ghulam Kibria when a young boy came to the shop and handed over one note of Rs, 100 denomination for the purchase of milk-pack. The note was suspected to be forged. The boy attempted to snatch the note but he with the help of the shop- keeper overpowered the boy and handed him over to the police party. I.H.C. Khawaj Muhammad P.W.3 testified having reached to the shop of Ghulam Kibria P.W. On hearing alarm. He also confirmed having arrested the accused-appellant. He further confirmed having taken the notes in question in possession and made recovery memos. In this respect. S.H.O., Saiful Malook P.W.4 confirmed having incorporated the Murasila Exh.P.A./1 into F.I.R. Exh.P.A. F.C. Muhammad Irshad P.W.6 testified having stood marginal wintess to recovery memo. Exh.P.W.3/1 and Exh.P.W.3/2. Ghulam Kibria P.W.7 supported the prosecution story and claimed to have caught hold of the appellant with timely help of Muhammad Shafique P.W.
5. In his examination under section 342, Cr.P.C. The appellant denied each and every allegation put to him. He produced no evidence in defence.
6. After taking into account the evidence brought on record, the learned Sessions Judge, Haripur found the appellant guilty and convicted and sentenced him, as noted above.
7. I have heard Mr. Saeed Akhtar, Advocate learned counsel for the appellant and Mr. Khurram Ghias, Advocate for the State with reference to the material on file.
8. Learned counsel for the appellant attempted to argue firstly that there is no credible evidence to prove that the appellant had delivered the counterfeit note P.1 to Ghulam Kibria shop-keeper who is alleged to have passed it on to I.H.C. Khawaj Muhammad P.W.; that conceding for a while that the appellant had made over a note of Rs,100 denomination to Ghulam Kibria still it is far from proved that the counterfeit note P.1 was the one which the appellant had given to him by way of price of the milk-pack; that necessary ingredients of section 489-B, P.P.C. Have not been proved against the appellant; that there is violation of the provisions of section 103, Cr.P.C. Inasmuch as two respectable persons from the public were not associated in the recovery proceedings and that as the co-accused alleged to have given the note in question to the appellant has been acquitted the learned trial Judge had no justifiable reason to convict the appellant of the offence charged for.
9. On the contrary, learned counsel for the State defended the impugned judgment and prayed for its sustenance but conceded that the investigation carried out in the case is not above board and the police officials appear to have a hand in the affair.
10. Having heard the arguments and submissions of learned counsel for the parties I find myself in agreement with learned counsel for the appellant that necessary ingredients of section 489-B, P.P.C. Have not been proved against the appellant and thus, the conviction and sentence cannot be maintained. The relevant section reads:-- "489-B. Using as genuine forged or counterfeit currency notes or bank notes.--- Whoever sells to, or buys or receives from, any other person, or otherwise traffic ;n or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with it prisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
11. The essential ingredient of an offence under the abovementioned section is that the offender should not only be in possession of the currency note but should also use the same or having reason to believe the same to be forged or counterfeit. In the instant case these ingredients are conspicuously missing. 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 reason to possess such knowledge is incorporated in the very section of law. In the present case the prosecution, as rightly urged by learned counsel for the appellant, has brought nothing on record either oral or circumstantial to indicate that the appellant had the knowledge or had reasons to believe that the currency in question was either forged or counterfeit. Abdul Maroof appellant v. The State respondent PLD 1993 Pesh. 167, Liaqat and others appellants v. The State respondent 1996 M LD 922 (Peshawar), Zahoor Ahmad appellant v. The State respondent 1995 PCr.LJ 1715 (Lahore) and Muhammad Saleem appellant v. The State respondent 1995 PCr.LJ 662 (Lahore).
12. The second objection raised on behalf of the appellant, regarding non-compliance of the mandatory provisions of section 103, Cr.P.C. Is also not without substance. It is evident from record that the mandatory provisions of the aforesaid provision of law had not been fulfilled inasmuch as two respectable persons from the public though available had not been made witnesses to the recovery memos. The law requires that in such-like cases two or more respectable inhabitants of locality should be associated to witness the recovery. In this case I.H.C. Khawaj Muhammad P.W.
Had no difficulty in associating two independent witnesses. No explanation has been given by complainant Khawaj Muhammad or any other prosecution witness as to why the services of independent witnesses had not been acquired when the same were available. It is true that the evidence of a police personnel cannot be ignored altogether as a police man is as good witness as any other person until and unless evidence is brought on record to discredit his evidence but the fact cannot be lost sight of that in the present case it stands established from the evidence on record that the shop of Ghulam Kibria P.W. Is situated in a thickly-populated area and many independent witnesses including P.W. Muhammad Shafique were available but they were not made witnesses to the recovery memo. It is well-settled principle of law that if a particular procedure for doing anything or for taking any action is prescribed by law then it has to be strictly followed and adhered to and thing done or action taken has to be in accordance with the said prescribed procedure otherwise the thing done or action taken would be a nullity in the eyes of law.
Such thing done or action taken would not be considered to have been done or taken at all. The factum of attestation of recovery memos. By police officials alone is a clear non-compliance with the provisions of section 103, Cr.P.C. And the whole exercise would mean that no action had been taken in obedience thereto. The Investigating Officers in such a situation are bound to carry out the intention of law to the last word.
13. For giving benefit of doubt to an accused person, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates a reasonable doubt in prudent mind about the guilt of the accused then accused will be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Tariq Parvez v. The State PLD 1995 SC 1345(sic).
14. In the last leg of arguments learned counsel for the, appellant urged that the Investigating Officer namely Khawaj Muhammad I.H.C. Having combined in himself the duties of complainant, Investigating Officer and witness. The investigation is not above-board and keeping in view the circumstances of the case it appears to have been carried out dishonestly. The situation is forceful.
It is true there is no legal prohibition for police official to be a complainant, a witness to the commission of offence and also to be an Investigating Officer, so far as, it does not, in any manner, prejudice the accused person. In the present case I feel that the investigation has not been conducted fairly and honestly which has made the prosecution case doubtful. under the law, the Investigating Officer is required to play very important role and the investigation has to be conducted impartially and with the object of finding out prima facie whether the crime has been committed and, if so, nominate the culprits and bring them to book.
15. Resultantly, keeping in view the fact that star-witness Ghulam Kibria P.W. And Muhammad Shafique, claim to have overpowered the appellant with the assistance of Ghulam Kibria, have not been made witnesses to the recovery memo., the Murasila Exh.P.A./1 is silent regarding presence of Muhammad Shafique P.W. At the spot, contradiction in the statements of prosecution witnesses, non-fulfilment of essential ingredients of section 489-B, P.P.C. And non-compliance of mandatory provision of section 103, Cr.P.C. I find that the prosecution had not been able to bring guilt home to the appellant beyond a pale of reasonable doubt. The appellant is entitled to get the benefit of doubt and acquittal from the charge levelled against him. I, therefore, accept this appeal, set aside the impugned judgment and acquit the appellant from the charge. The appellant is on bail. His bail bonds shall stand cancelled.