P L D 1993 Peshawar 167 (PLP)

9. In his examination under section 342, Cr.P.C., the appellant denied each and every allegation put to him. He has also examined himself on oath under section 340(2), Cr.P.C. in disproof of the charge.

10. On the assessment of the evidence reproduced above, the learned Additional Sessions Judge, Abbottabad, found the appellant guilty under section 489‑B, P.P.C. and sentenced him to rigorous imprisonment for three years and to pay a fine of Rs.10,000 or in default to undergo further rigorous imprisonment for one year. He was, however, held entitled to the benefit of section 382‑B; Cr.P.C.

11. I have heard Mr. Abdullah Jan Mirza, learned counsel for the appellant who raised the following contentions in support of the appeal:‑‑ (a) That there is no credible evidence to prove that the appellant had delivered the counterfeit note P.2 to Sajjad Ahmed (P.W.1) who is alleged to have passed it on to Abdul Qayyum (P.W.5) or Muhammad Akram (P.W.6). (b) That conceding for a while that the appellant had made over a note of Rs.1,000 deonmination to Sajjad Ahmed (P.W.1) still it is far from proved that the counterfeit note P.2 was the one which the appellant had given to him by way of price of the petrol. (c) That the evidence as to who gave the currency note P.2 and to whom is doubtful because evidence on this point was highly contradictory. Reference in this context was made to the testimony of Muhammad Akram (P.W.6) who was categorical to have received the currency note from the driver of the car and informed Abdul Qayyum (P.W.5) his employer who had claimed to have received the note himself from Shamraiz (P.W.7). In his report Exh.PA/1 he had not named any one whereas Sajjad Ahmed (P.W.1) has deposed in unequivocal terms that he had given the note P.2 to Abdul Qayyum (P.W. 5). (d) That the investigation in the case has been conducted dishonestly, in that, on the one hand Sajjad Ahmed (P.W.1) or for that matter Shamraiz (P.W.7) were charged while on the other, crime had been foisted on the appellant on account of his complaint against Liaqat Ali the then A.S.P., Abbottabad.

12. The learned Assistant Advocate‑General appearing on behalf of the State has supported, the judgment of the learned trial Judge.

13. The learned counsel for the appellant was right when he urged that necessary ingredients of section 489‑B, P.P.C. have not been proved against the appellant. The relevant section is reproduced below for ready reference:‑‑ "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 traffics in 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 imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine:" 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, the appellant is neither charged nor is established to have passed on the forged or counterfeit note either to Abdul Qayyum (P.W.5) or Muhammad Akram (P.W.6). He is alleged to have given the note P.2 which was counterfeit, to Sajjad Ahmed (P.W.1) who in turn passed it on innocently to them. In support of this allegation the evidence of Sajjad Ahmed (P.W.1), Salim (P.W.2) and Shamraiz (P.W.7) has been relied upon. Corroboration thereto has also been sought from the evidence of Abdul Qayyum (P.W. 5), Muhammad Akram (P.W.6) and Ali Akbar, 1.0. (P.W.9).

14. As against it, the stand of the appellant both in his statement under section 342, Cr.P.C. and the one on oath under section 340(2), Cr.P.C. is that Sajjad Ahmed was standing on the road side when the appellant arrived at the spot. The appellant "allowed him to take his car for parking in the appellant's garage which is in close vicinity of the place where he stopped his car". Instead of parking it in his garage he took the car to Abbottabad and that he had not given any currency note to him.

15. The assertion of Sajjad Ahmed (P.W.1), Salim (P.W.2) and Shamraiz (P.W.7) that after the currency note P.2 was detected to be counterfeit by the cashier Sajjad Ahmed or Shamraiz informed him that the car and the note belonged to the appellant finds no mention either in the report Exh.PA/1 lodged by Abdul Qayyum (P.W.5) or in the Muratila Exh.PB scribed by Ali Akbar S.H.O. (P.W.9). It appears to be an improvement which demolishes the case of the prosecution against the appellant. All the three P.Ws., according to the report Exh.PA/1 and the Murasila Exh.PB, after detecting the note to be counterfeit fled away from the spot leaving the car at petrol pump whereas in their testimony in the Court they have taken absolutely a different turn when they are alleged to have disclosed the name of the appellant to have allowed them to drive his car and also gave them the note of Rs.1,000 for putting 12 or 20 litres of petrol. These star witnesses of the prosecution were confronted with their new stand which they could not explain on any hypothesis. Sajjad Ahmed (P.W.1) also admitted in his cross‑examination that the appellant never asked him "to go and get filled his car with petrol". Similarly the evidence of Salim (P.W.2) even otherwise is not admissible in that he had not been examined by the police under section 161, Cr.P.C. He was examined under section 164, Cr.P.C. after three days of the ocr‑irrence on 12th June, 1990. Obviously, the delay of three days in recording his statement renders it incredible. Sajjad Ahmed (P.W.1) has been belied by Shamraiz (P.W. 7) when the former had positively stated that the latter had accompanied him in the appellant's car to Abbottabad while the latter had maintained that he came to know about the incident on the following day meaning thereby that he had not gone to Abbottabad with the former. Likewise Abdul Qayyum (P.W.5) contradicted Sajjad Ahmed (P.W.1) when he urged that the note P.2 was given to him by Shamraiz (P.W.7) who was driving the car. Muhammad Akram (P.W.6) as stated earlier, had contradicted Abdul Qayyum (P.W.5) on material particulars and, therefore, heavy shadow of doubt is cast on the case of the prosecution.

16. The long and short of it is that the prosecution has not been able to establish by any cogent evidence that the appellant had allowed Sajjad Ahmed (P.W.1), Salim (P.W.2) or Shamraiz (P.W.7) to take his car to Abbottabad and gave him a note of Rs.1,000 denomination and that it was counterfeit to the knowledge of the appellant. Conceding for a while that he did give a note of Rs.1,000 denomination still there is no positive evidence on the point that it was the same note which had been passed on by Sajjad Ahmed (P.W. 1) or Shamraiz (P.W.7).

17. The investigation in the case to say the least is not above board. The report Exh.PA/1 was not incorporated in the F.I.R. Conversely, Ali Akbar S.H.O. (P.W.9) visited the spot, made inquiry under section 156(3), Cr.P.C. and drafted another Murasila Exh.PB on the basis of which F.I.R. Exh.PA was drawn up. Sajjad Ahmed (P.W. 1) was first arrested as an accused and was then abruptly released under section 169, Cr.P.C. and turned into a witness who after three days charged the appellant for giving him the counterfeit note. A bare reading of the evidence of Sajjad Ahmed (P.W.1), Salim (P.W.2), Abdul Qayyum (P.W.5), Muhammad Akram (P.W.6), Shamraiz (P.W.7) and Ali Akbar (P.W.9) as a whole leave many important questions unanswered.

18. The first question is whether the incriminating currency note was given by the appellant to Sajjad Ahmed (P.W.1) or Shamraiz (P.W. 7) which was as such actually passed on to Abdul Qayyum (P.W.5) or Muhammad Akram (P.W.6). This would beg another question whether Sajjad Ahmed (P.W.1) had on his person no other note of Rs.1,000 denomination. The possibility of Sajjad Ahmed (P.W.1) having passed on a counterfeit note of his own cannot be ruled out. Then there is no evidence if the appellant had "knowledge" or had "reason to believe" that the currency note P.I was forged or counterfeit. The two terms are more or less ejusdem generis though knowledge will be on a slightly. higher plane than reason to believe. But suspicion or doubt is not sufficient for fastening liability under section 489‑B or 389‑C, P.P.C.

19. For the reasons stated above, I hold that the prosecution has failed to bring home to the appellant the charge of offence under section 489‑B, P.P.C. or any other offence. The appeal is, therefore, allowed and the appellant is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case. These are the reasons for the short order announced on 21‑3‑1993, N.H.Q./1477/P Appeal allowed.