1981 P Cr (PLP)

Petitioner was tried by Syed Fazal Hussain, Magistrate section 30, Rawalpindi on a charge under section 489 (6), P. P. C. vide judgment dated 1stJuly, 1970 he was found guilty of the offence charged and sentenced to four years' R. I. His appeal before the learned Additional Sessions Judge was dismissed on 10th December, 1970, However, the sentence was altered to three years' R. I. and a fine of Rs. 500 or in default thereof, further six months' R. I.

2. Hence this revision.

3. On 16th January, 1969 petitioner went to the shop of Muhammad Ramzan P. W. for purchasing cloth. The total price of the cloth so purchased came to Rs.

334. Petitioner gave him Rs. 340 in the shape of three notes of Rs. 100 denomination each and four currency notes of Rs. 10 each. Muhammad Ramzan P. W. suspected the genuineness of the currency notes and he told the petitioner that the notes were forged. There ensued a discussion between the petitioner and Muhammad Ramzan p. W. over this. In the meantime some other customers came over there. Seeing the people approaching, petitioner tried to slip away. He was given a chase and was ultimately caught by Muhammad Sharif S. I. and Said Ahmad A. S. I. who happened, to pass that way. Muhammad Ramzan P. W. gave currency notes of Rs. 340 back to the petitioner. The same were taken into possession vide memo. Exh. P. A. On his personal search eight more notes of the denomination of Rs. 1.00 each were recovered and taken into possession vide memo. Exh. P. B. On the state ment (Exh. P. C.) of Muhammad Ramzan P: W. a case under section 489/B, P. P. C. was registered against the petitioner. It maybe mentioned here that the currency notes were found by the State Bank of Pakistan vide report Exh. P.F., to be forged one.

4. Petitioner, at the trial, denied the allegations and pleaded innocence. He stated that on 15thJanuary, 1969 he went to the shop of Muhammad Ramzan P. W. and made some purchases. He had Rs. 4,000 with him and parted with the same on the advice of Muhammad Ramzan P. W. The next day, he went to Muhammad Ramzan P. W. and claimed back the money. The P. W. refused and got this case fabricated against him. He examined four witnesses in defence.

5. Prosecution at the trial, besides Muhammad Ramzan complainant, examined Muhammad Sadiq P. W. 2, Sh. Muhammad Ismail P. W. 3, Muhammad Sharif S. I., C. I. A. P. W. 5, in support of its case.

6. I have heard the learned counsel for the parties and have gore through the record of the case with their help. Learned counsel for the petitioner has raised one main contention in support of this petition. It is contended that the report of the State Bank of Pakistan was not admissible in evidence as it was not covered by the provisions of section 510, Cr. P. C. Therefore, there was no evidence to hold that the notes even if the recovery in believed, were faked. He referred to King-Emperor v, Dahu Raut (A I R 1935 P C 89) and Zamir Hussain v. Crown (P LD 1949 Lah. 179).

7. Learned counsel for the State, on the other hand, argued that both the Courts below have recorded a concurrent finding regarding the guilt of the petitioner and no exception can be taken to the same.

8. Contention of the learned counsel for the petitioner that the Courts below have committed an error of law in taking into consideration the report of the State Bank of Pakistan against the express provisions of section 510, Cr. P. C., has force. Section 510, Cr. P. C. reads:

'Any document purporting to be a report, under he hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, fingerprint expert or fire-arm expert appointed by Government, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceed ing under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: Provided that the Court may, if it considers necessary in the interest of justice, summon and examine the person by whom such report has been made." It is obvious that the Currency Officer who submitted report Exh. P. F. is not an expert witness within the meaning of this section. Therefore, the trial Court was obliged to send for the Currency Officer to be examined as a witness on this aspect of the case. I am therefore, of the view that the two Courts below have committed the illegality which is not curable under section 537; Cr. P. C. I am supported in the view taken by the cases-cited. I would have remanded the case for re-trial but keeping in view the fact that the petitioner has already undergone a substantive period of his imprisonment, I will have no option but to accept this petition. The same is accordingly accepted. Conviction and sentences of the petitioner are set aside and he is acquitted. He is already on bail. He shall be discharged of his bail bonds. Revision allowed.