1969 PLP 726 (SCMR)

SHAHABUDDI1T, J.‑Said Akbar, sole appellant in Criminal Appeal No. 31 of 1954, Muhammad Asharaf, Mal Afsar and Ali Bahadur (appellants in Criminal Appeal No. 32) and Muhammad Banaras (appellant in Criminal Appeal No. 33 of 1954) were convicted and sentenced by the Sessions Judge, Rawalpindi, under section 489‑B, P. P. C., Said Akbar to transportation for life, the appellants in Criminal Appeal No. 32 of 1954 to rigorous imprison ment for ten years and a fine of Rs. 10,000 each and Muhammad Banaras to rigorous imprisonment for ten years. With these appel lants, four others, Ghulam Sarwar, Inayat Hussain, Muhammad Sadiq and Hashmat Ali alias Bairang were convicted and sentenced at the same trial, Ghulam Sar rvar under sections 489‑A and 489‑B and 489‑D to transportation for life on each count ; Inayat under section 489‑A/109, P. P. C. to five years' rigorous imprisonment, Muhammad Sadiq under section 489‑D to ten years' rigorous imprisonment and Hashmat Ali under sections 489‑A and 489‑D to transportation for life on each count. The nine convicted persons appealed to the High Court of Lahore and while Inayat Hussain was acquitted the convictions and sentences of imprisonment imposed on the others were upheld but the sentences of fine imposed on Ali Bahadur, Mat Afsar and Muhammad ashraf were reduced from Rs. 1,000 to Rs. 500 each rind the imprisonment in default from one year tc six months' rigorous imprisonment. These appeals are by special leave from the judgment of the High Court of Judicature at Lahore. and are disposed of in a common judgment as they arise out of the convictions imposed at the same trial. The case for the prosecution shortly stated was that Ghulan, Sarwar, Muhammad Sadiq, Hashmat Ali, Inayat, who did not apply for special leave to appeal, with the help of Saleh Muhammad, the approver in the case, participated some time in December 1949 in the counterfeiting of hundred‑rupee notes of a face value of four lacs and fifty thousands and ten‑rupee notes of a face value of eighteen to twenty thousands. These notes were; however, defective owing to lack of embossing powder, but as they did not have sufficient funds to go to America or U. K. to get suitable materials they decided to put the counterfeit notes already printed into circulation. Ghulam Sarwiar made over counterfeit ten‑rupee notes of the face value of rupees eight thousand to appellant Said Akbar asking him to pass them on the illiterate villagers and promising him 50% commission. Said Akbar passed some of these counterfeit notes to the other appellants who uttering them in buying wheat. Said Akbar himself uttering a hundred‑rupee counterfeit note. He gave it to P.W. 45 when he purchased from him wheat for Ids.

80. The witness gave Said Akbar the balance of Rs. 20 and used the hundred a rupee note it repaying Rs. 40 he owed witness Muhamatad Afzal (P. W. 46) who taking the note gave him Rs.

60. The hundred‑rupee note was thereafter offered by P. W. 46 to Muhammad Yusuf (P. W. 47), a money changer who returned it saying that it was counterfeit and reported the matter to the police who seized the note from P. W. 46 and took him to custody. Besides the evidence of these witnesses there was the evidence of the: approve: that Ghulam Saawar gave Said Akbar counterfeit ten‑rupee notes of the value of Rs. 8,OJ0 for circulation promising him 60 Y, commission. There was also the retracted confession of Said Akbar to the effect that he received from Ghulam Sarwar counterfeit worth in all about seven thousand rupees on different dates. He stated that he was first given notes of the face value of Rs. 500 for being changed, that he passed them on, to Ali Bahadur telling him that they were forged notes and that he should get them exchanged with great care and caution. Next day he received counterfeit notes of the face value of two thousand from Ghulam Sarwar and made them over to Muhammad Ashraf asking him to be careful in circulating them. On the third day similar notes of a face value of Rs. 1,000 were given to him by Ghulam Sarwar and these he handed over to appellant Muhammad Banaras and another asking them to circulate the notes carefully as they were counterfeit. On the fourth day counterfeit notes of the face . value of Rs. 1,000 were again given to him by Ghulam Sarwar and " he made them over , to one Muhammad Ajaib who is not before us. He also obtained from Ghulam Sarwar notes of a face value of Rs. 2,500 which he burnt later on learning that some people had been arrested with counterfeit notes. Ali Bahadur, Mal Afsar and Muhammad Ashraf also made confession but they too retracted them later on. Ali Bahadur's confession was that white he and Mal Afsar were sitting with Ashraf in his shop Said Akbar came and asked Ashraf for money and when the latter said that he had none, Said Akbar asked him to get some money from Mal Afsar who, however, refused to make any payment. Then Mal Afsar and Said Akbar had a talk and Mal Afsar gave Ali Bahadur three hundred‑rupee notes and five notes of rupees ten each of Pakistani Currency and asked him to accompany Said Akbar who took him to Firdaus Restaurant and gave him counterfeit ten‑rupee notes of the face value of Rs. 500 asking him to give them to Mal Afsar. Then he and Mal Afsar purchased wheat and paid for it in counterfeit and genuine notes. Mal Afsar's confession was to the effect that Said Akbar and Ghulam Sarwar used to counterfeit currency notes, that he got such notes from Said Akbar and Sarwar knowing them to be counterfeit and with a view to dispose of them as he was promised 30 is commission and that he and Ali Bahadur disposed of the counterfeit notes. Muhammad Ashraf in his confession admitted that he received from Said Akbar counterfeit ten‑rupee notes of a value of Rs. 2,700 for purchasing wheat and blankets, that he made the purchase with those notes and thereafter heard that the persons from whom the purchase was made had been arrested. He, however, added that he did not know that the notes were counterfeit when he received them from Said Akbar. But he admitted that he gave notes of a value of Rs. 710 to Kale who returned them the next day saying that he was paid in forged notes. It was in the evidence of P. W. 43 Kaia Khan that Mal Afsar and Muhammad Ashraf whom the witness knew came to him accompanied by P. W. 42, Muhammad Shafi, a tonga driver and contracted to buy 92 maunds of wheat at the rate of Rs. 11 a maund. Muhammad Ashraf asked the witness to deliver the wheat at the kothi of Ghulam Sarwar in village Jhawray from where he said he would transport it in his own truck and promised to pay the price in his shop in Kanak Mandi. The wheat was accordingly supplied to Mal Afsar and Ashral and at his shop Asbraf paid the witness Kale Khan Rs. 1,000 in ten‑rupee notes. ""'Out Out of these notes the witness gave nine to witness Ghulam Sarwar and nine to witness Ghulam Muhammad. Neat day when Kale Khan was coming from his house to Rawalpindi Mal Afsar met and told him that he had been pai4 by Muhammad Ashraf more than what was due. Kale ti than then handed over the bundle of notes of a value of Rs. 820 to Mal Afsar and when the latter was counting them witness Ghulam Muhammad and Uhulam Sarwar came up and stated that the notes which had been given to them were counterfeit, Mal Afsar then said that they should not "kick up a raw" and that he would change the notes and so saying he took away the notes. Kale Khan then took Ghulam Muhammad and Ghulam Sarwar to the Police Station Sadar, Rawalpindi, and made a report. There was also the evidence of Khuda Dad (P. W. 54) that he sold ten maunds of wheat to Ali Bahadur and Mal Afsar at the rate of Rs. 9 a maund and that Mal Afsar paid the witness Rs. 39 and promised to pay the balance with the transport charges at Rawalpindi. Ali Bahadur and Mal Afsar purchased wheat from others also. One of the persons from whom wheat was purchased, Abdul Ghani, paid witness Khuda Dad Rs. 160 in notes out of the notes which he had received from Ali Bahadur and Mal Afsar. Another person Akbar (P. W. 89) who sold wheat to Mal Afsar and Ali Bahadur stated that he was ,given ten‑rupee ten currency notes and with those notes he (the witness) went to pay a shop‑keeper to whom he owed money but that the shop‑keeper told him that they were all counterfeit notes. He then met Ali Bahadur and Mal Afsar and on his accusing them of having passed on to him counterfeit notes, they asked him not to create trouble but to return the notes and they promised to replace them by genuine notes. Ali Bahadur and Mal Afsar took the notes but did not make good the loss. The witness then reported the matter to the police. Appellant Muhammad Banaras did not make a confession. His conviction mainly rests on the evidence of Maula Dad (P. W. 51), which was marked under section 33 of the Evidence Act as he died subsequent to the committal of the case, supported by the evidence of Sher Muhammad (P. W. 69), Sahib Khan (P. W. 52), Nawab Khan (P. W. 53), Ch. Aziz Din Tehsildar (N. W. 90) and Raja Asaf Khan (P. W. 96). The evidence of Maula Dad was to the effect that Muhammad Banaras gave him Rs. 1,000 in the form of ten‑rupee currency notes for the wheat he purchased from him. P. Ws. 52 and 53 and another were then present. The witness told the appellant that the texture of the notes had roused his suspicion but Banaras assured him that the notes were new Pakistani notes. The witness kept Rs. 700 out of those notes with P. W. 52 and with the balance he went three days later to pay land revenue. When h gave these notes in the Tehsil the cashier found that 13 of them were counterfeit and took him with the notes to P. W. 90 the Tehsildar who recorded his statement which was to the effect that he had received ten‑rupee notes of a value of Rs. 1,000 from Muhammad Banaras for the wheat he had purchased from the witness and the counterfeit notes were amongst those what Banaras had given him. Thereupon P. W. 90 made a report to the police and P. W. 96 the Sub‑Inspector took action on the report. Said Akbar in his statement before the Committing Magistrate to which he had nothing material to add at the trial denied the allegations made against him. He, however, admitted that he made the confessional statement to the Magistrate but explained that he did so because the police had tutored him to make that statement saying that he had been tendered pardon He examined two witnesses who were Assistant Superintendents of Jail at Rawalpindi (D. Ws. 2 and 4). Their evidence was to the effect that in the chakkar register of the Jail there was an entry that this appellant and appellant Ali Bahadur were admitted into the jail on 1st February 1950 (the date of their confession) as approvers, and that their diet was drawn on the scale fixed for approvers. It was however added by D. W. 2 that there was a note made on 4th of March under the orders of the Superin tendent, Central Jail that entry was a mistake. In their statements before the Committing Magistrate to which they had nothing material to add, Ali Bahadur, Mal Afsar and Muhammad Ashraf denied the allegations against them. They, however, admitted having made the confessions but explained that they made those statements in the capacity of witnesses. Ali Bahadur stated that he made to the Magistrate the statement which the Sub‑Inspector asked him to make and that he was also told that he bad been tendered pardon. Mal Afsar explained that he stated as directed by the police and that he did so as a witness. According to appellant Muhammad Asbraf he made the statement to the Magistrate as he was told by the police that he would be a witness. The defence of Muhammad Banaras was that be neither knew Said Akbar nor received counterfeit notes from him but that he was falsely implicated in this case at the instance of witness Muhammad Sadiq Khan, master of Maula Dad, and a close friend of the Tehsildar Aziz Din because the letter bore him a grudge on account of his baying made a public speech against him at Fateh Jhang which entailed his (ranaras's) prosecution. The learned Judges of the High Court believed the evidence adduced against these appellants and considered it as sufficient corroboration of their retracted confessions and in the case of Said Akbar of the evidence of the approver also. They rejected the defence version and took into consideration against every one of the appellants the retracted confession of their co‑appellants. The main contentions advanced in these appeals were these: (1) It was not the case for the prosecution that the appellants participated in the counterfeiting of the notes. The charge against there was of uttering counterfeit notes and there was no allegation in the charges against them that they acted in conspiracy with the other accused who were tried and convicted for having counterfeited the notes. There was, therefore, misjoinder of charges and the trial was bad. (2) The confessions of the appellants should not have been taken into consideration as there was enough of evidence to indicate that they were made under inducement by persons in authority. (3) The evidence which was considered to be corroboration of the retracted confession of Said Akbar did not in fact corro borate it or the approver's evidence and that evidence was misread. Similarly the evidence on which the conviction of Muhammad Banaraswas baled was misconstrued and the retract ed confession of Said Akbar which was taken into consideration against this appellant was specifically put to him when he was examined under section 342, Cr. P. C. We see no force in these contentions and in our opinion the appeals must be dimissed. It is true that in the charges framed against the appellants it is not alleged that they acted in conspiracy with the accused who counterfeited the notes or distributed it to people for circulation amongst the public; but it was conceded that in the challan the allegation was that these appellants and the other accused acted in the course of same transaction. The evidence recorded before the charges were framed by the Committing Magistrate obvi ously disclosed that the notes that were counterfeited by the other accused were given by one of them to the appellants for circulation amongst the public and that these acts were committed in the course of the same transaction. There is no force in the conten tion that the stage of accusation is the stage at which the charges are framed. In Babulal Choukhani v The King‑Emperor (1) their Lordships of the Privy Council observed "It is on the basis off what appears on the face of the accusation that the Court may proceed to charge and try. The accusation is necessarily anterior to the exercise of the discretion to charge and try. These are stages subsequent to the accusation. This view is strengthened by reference to section 254, which states the duty of the Magistrate in warrant cases, such as the eases in question here. The duty so stated is that the Magistrate, when evidence has been taken, or at any previous stage of the case, if of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI, which he is competent to A try, and which, in his opinion, could be adequately punished by him, should frame in writing a charge against the accused". That in this respect there is no difference between a case triable by a Magistrate and a case triable by the High Court or in the Court of Sessions is also made clear by their Lordships who observed: "Similarly, in the case of trials in the High Court or Courts of Sessions, charges will be framed on the accusation.", Section 239 (d), Cr. P. C. allows a joinder of persons when the, case relates to the same transaction. There was, therefore, no misjoinder of charges in this case. The argument regarding the confessions of the first four appellants was that the evidence of the two Assistant Superin tendents of Jails examined for the defence was sufficient to make it appear that the confessions were made under inducement and that the learned Judges in respect of this part of the case misdirected themselves in thinking that under section 24 of the Evidence Act the accused had to establish that there was an inducement while as a matter of fact the language of that section is that a confession becomes inadmissible even if it appears that there was an inducement by a person in authority. There is no observation in the judgment to the effect that the appellant had to prove that there was inducement and that if it merely appeared that there was an inducement it would not do. The learned Judges have considered the circumstances relating to this part of the case and came to the conclusion that the confessions were voluntary. On a consideration of the evidence relating to this point we see no justification for interfering with this finding which was recorded after a discussion of the evidence and the probabilities of the case. The Magistrate (P. W. 72) clearly said that he warned these appellants that they were not bound to make a statement and that anything they said might be used against them and that these appellants told him that they were not induced to make a statement but that they were making the statement voluntarily. He deposed that both Said Akbar and Ali Bahadur stated to him that there was no pressure of any kind. He also said that he sent these two appellants to the judicial lock‑up as accused persons. It is significant that in their statements they (the appellants) did not say as to who the particular person was who had induced them to make the confession. In the confession of Muhammad Ashraf it is no doubt stated at a later stage that when he received the notes from Sarwar he did not know that they were counterfeit. But it is clear from his confession read as a whole that he received the notes with the knowledge that they were counterfeit. In any case it discloses that he received notes from Ghulam Sarwar and to that extent it supports the case against this appellant. Besides there is other evidence establishing the case for the prosecution. As regards the evidence of P. Ws. 45 to 47 the criticism was that while it disclosed that the counterfeit Rs. 100 note was given to P. W. 45 by Said Akbar some where in March, Said Akbar was arrested even in January 1950. It is true that Exh. P. 57 the memo. of recovery of the currency note is dated 20th April 1950 and the evidence of P. W. 46 is that he received that note from P. W. 45 ten or twelve days prior to its seizure and P. W. 45 himself had deposed in the earlier part of the cross‑examination that he passed it on to P. W. 46, 15 or 20 days after receiving it from Said Akbar. But at the end of the cross‑examination he added that Said Akbar gave him the note about a year and half prior to his giving evidence. It was on 21st March 1951 that be gave evidence at the trial. About one and half years from that date would take us to a date earlier than 21st January 1950, when Said Akbar was arrested. Simi larly there is no force in the argument that the evidence of P. W. 45 cannot be said to corroborate the approver's testimony as the note given to P. W. 45 was a Rs. 100 currency note while the approver's evidence was that ten‑rupee counterfeit notes were given to Said Akbar by Ghulam Sarwar. The mere fact that there is a discrepancy with regard to the denomination of the counterfeit notes does not take away the value of the evidence that counterfeit notes were actually given to Said Akbar. The evidence of P. W. 45 does tend to support the approver's statement that Ghulam Sarwar gave counterfeit notes to this appellant. As regards appellant Banaras the argument was that the learned Judges of the High Court overlooked the important fact that Maula Dad did not state to his master P. W. 50 that he got the counterfeit notes from the appellant Muhammad Banaras but op the other hand he said that he did not definitely know from where he got those notes. It was also pointed out that the learned Judges of the High Court observed in the judgment that the evidence of P. W. 52 supported that of Maula Dad while as a matter of fact P. W. 52 had said that the truth was that the notes were not passed in his presence to Maula Dad and that the evidence of the cashier did not disclose that Maula Dad told him that he received those notes from appellant Muhammad Banaras and this' fact was not considered by the learned Judges. It is true that Maula Dad had stated to his master that he could not definitely say from where he got those notes but it is clear from the evidence of P. W. 50 that he met Maula Dad some time after the latter had handed the notes in the Tehsil and the Tehsildar had recorded his statement. Maula Dad was cross‑examined during the committal enquiry, and in that cross -examination though reference was made to P. W. 50 Maula Dad was not asked why he told P. W. 50 that he did not know definitely as to where from he had got the notes. He might have given a satisfactory explanation if questioned on this point. In the circumstances there was no reason to doubt the truth of his statement. The learned Judges of the High Court had given reasons for rejecting the defence allegation that the Tehsildar had this appellant falsely implicated in the case. The version that the appellant Banaras gave these notes to Maula Dad is mentioned in the statement recorded by the Tehsildar. The fact that Maula Dad did not tell the cashier that he had received those notes from Muhammad Banaras hardly affects the evidence of Maula Dad as there is nothing in the evidence of the cashier to show that he asked Maula Dad Khan from where he got those notes. On the other hand the evidence of the cashier was that as soon as he suspected that the notes were counterfeit he took them and Maula Dad to the Tehsildar. As regards P. W. 52 the learned Judges have while stating his evidence pointed out that witness was treated as hostile and was confronted with his statement before the Committing Magistrate and that most of it he had admitted. It is no doubt true that in cross‑examination he said that the truth was that he did not see the notes being given by appellant Banaras to Maula Dad, but he admitted that Maula Dad kept notes of the face value of Rs. 700 with him for safe custody, and that two or three days later the police came and took out of those notes, ten notes which they said were counterfeit. This evidence supports that of Maula Dad to some extent. However, the evidence of P. W. 53 fully supports the version of Maula Dad that the appellant Banaras gave him notes of a face value of Rs. 1,

000. As regards the retracted confession of Said Akbar so far as it afects Banaras, it is seen from his statement before the Committing Magistrate that he was asked whether he received from Said Akbar at Rawalapindi ten‑rupee counterfeit notes of the value of Rs.

500. Lastly it was argued that in the matter of sentences the learned Judges of the High Court drew a distinction with regard ;o the degree of criminality between these appellants and the convicted accused Muhammad Sadiq and Said Akbar but did not reduce the sentences of imprisonment on the appellants. Reference is made to the observation in the judgment that the degree of criminality of Muhammad Sadiq and Said Akbar was higher than that of Mal Afsar, Muhammad Ashraf and Ali Bahadur who were responsible for the circulation of the counter feit notes. But it is clear from the other observations in the same paragraph of the judgment that this distinction was made by the learned Judges only with regard to the sentences of fine imposed on these appellants. As far as the sentences of imprison ment are concerned it does not appear that the learned Judges intended to make a distinction between the various accused. This is clear from the first sentence of the paragraph which is to the effect that they were of the view that the Sessions Judge was right in imposing deterrent sentences of imprisonment. However, it has not been shown that any principle governing the imposition of sentences was violated. It appears to us that; persons who circulate the counterfeit currency notes commit as serious an offence as those who actually counterfeit them. As far as the sentences of fine are considered the learned Judges modified them. The appeals are, therefore, dismissed. Appeals dismissed.