1991 PLP 2173 (MLD)

The appellant has been convicted by a learned Additional Sessions Judge, Haripur, vide his judgment, dated the 6th January, 1991, for an offence under section 489-C, P.P.C. and sentenced to suffer rigorous imprisonment for three years, and to pay a fine of Rs.1,000 or in default to suffer simple imprisonment for one month. He has challenged his conviction and sentence by way of filing this appeal.

2. The charge against the convict-appellant was that in pursuance of a spy information, Ashiq Hussain Shah, Additional S.H.O., Police Station, Haripur (P.W.4) alongwith Gul Zarin Khan, A.S.I. and the police party conducted on the 23rd May, 1988 at 8-30 a.m. personal search of Tariq appellant which led to the recovery of 36 counterfeit hundred-rupee currency notes from the right pocket of his shirt knowing or having reason to believe the same to be counterfeit and intending to use the same as genuine or that they may be used as genuine. The counterfeit currency notes were secured vide memo. Exh.P.W.2/1 which was witnessed by Gul Zarin Khan, A.S.I. and Imtiaz D.F.C. No.341. Ashiq Hussain Shah, S.I. (P.W.4) arrested the appellant and sent the Murasila Exh.P.W.P.A./1 to the Police Station Haripur, on the basis of which F.I.R. Exh.PA. was drawn up the same day. The Additional S.H.O. sent all the counterfeit currency notes to the Currency Officer of State Bank of Pakistan, Peshawar for examination and his opinion qua the genuineness or otherwise thereof. The report of Muhammad Amin Qureshi, Currency Officer revealed that all the notes described with numbers were counterfeit. After completion of investigation the appellant and one Muhammad Asghar were sent up to stand their trial. Muhammad Asghar was acquitted while the appellant was convicted and sentenced as aforesaid.

3. In support of the prosecution case, there is the evidence of Abdul Jamil, Assistant Currency Officer (P.W.1), Muhammad Ilyas F.C. (P.W.2) and Ashiq Hussain Shah, S.I. (P.W.4).

4. Ashiq Hussain Shah (P.W.4), who searched the person of the appellant, recovered 36 counterfeit notes, arrested the accused-appellant and his co-accused Muhammad Ashgar, since acquitted, has testified to the prosecution allegations as narrated above. Muhammad Ilyas F.C. (P W-2) is the only witness to the recovery memo. Exh.P.W.2/1.

5. The accused when examined under section 342, Cr.P.C. denied the search of his person and recovery of counterfeit currency notes. When asked as to why the P.Ws. deposed against you i.e. what he stated:-- "They are interested, no independent witness is cited to support the case.

6. The learned counsel for the appellant has contended that the recovery of counterfeit currency notes from the appellant was highly doubtful because albeit available still no independent persons from the neighbourhood were associated with the personal search of the appellant and only two police officials were made to witness the search and recovery memo. Exh.P.W.2/1 which cast serious doubt on the prosecution case. The learned counsel further submitted that the necessary ingredients of an offence under section 489-C, Np.C. have not been proved. In this context the learned counsel maintained that it is necessary not only to prove that the accused was in possession of the forged notes but it should be established further; (1) that at the time of possession the accused knew the notes to be forged or had reason to believe them to be so and; (2) that he intended to use them as genuine or that they might be used as genuine.

7. In support of his first contention the learned counsel for the appellant made pointed reference to: (1) Muhammad Azeem v. State 1977 P Cr.L J 671 and (2) Abdul Hamid v. State 1977 P Cr. L J 1717. In support of his second contention reliance was placed on: (1) Salvator Belvisi v. The State P L D 1961 (W.P.) Kar. 342; (2) Amanat Ali v. State 1971 P Cr. LJ 53 and (3) Asfaf Mian v. State 1989 P Cr. L J 1079.

8. As against this, the learned Assistant Advocate-General submitted that no material has been brought on the file against the police officials who had witnessed the search and recovery in this case in order to substantiate the plea of mala fides.

9. In this case the recovery of counterfeit c1srrency notes in consequence of the personal search of the appellant has not at, all been proved. The recovery memo. was purportedly witnessed by Gul Zarin Khan A.S.I. and Imitaz D.F.C. No.1341 of Police Station Haripur. Gul Zaria khan A.S.I. was abandoned whereas instead of Imtiaz D.F.C. Muhammad Ilyas F.C. was examined as P.W.2. I have noted with dismay that both the S.P.P. and the learned trial Judge have been negligent in performing their solemn duty at the time of trial to see as to whether a witness who has been examined is the one who had witnessed the recovery memo or not. The negligence of the learned counsel for defence is equally horrible. Since the recovery of the counterfeit currency notes from the personal search of the appellant has not only been denied by him in his examination under section 342, Cr.P.C. but is also far from proved, the appellant is, therefore, entitled to acquittal on this score alone.

10. I am aware of the proposition that police officials are as good witnesses as any other public witness in cases of recoveries provided the plea of mala fides is neither raised by the accused nor is substantiated. In the two precedent cases Shah Nawaz v. State P L D 1986 FSC 242 and Malik Aman v. State P L D 1986 S C M R 17 it has been observed that in a case of search in a bus by police constable provisions of section 103, Cr.P.C. would not be attracted. It has also been propounded in few other authorities that provisions of section 103, Cr.P.C. are applicable to the cases of search of the premises and not to the search of the persons. The Investigating Officers have by now dispensed with citing the public witnesses in almost each and every case of personal search of an accused and recovery of incriminating material in consequence thereof. The consequences are indeed horrible. There is very likelihood of the police foisting recoveries of incriminating material upon innocent citizens. No doubt in a case of search in a bus the private witnesses may not be either available or be ready to witness the recovery memos due to delays in conclusions of trials or other inconvenience to which the witnesses to criminal cases in the country are put. Nonetheless, in cases of personal search in a well-populated locality where the independent witnesses are 'available and there is also no reason to dispense with their association therewith I see no reason why they should not be associated with search of a person or at least one out 'of the 2/3 witnesses of search aforesaid. I cannot approve of the tendency of the Investigating Officers to invariably cite only the police officials in search of persons and recoveries in criminal cases.

11. In this regard the following observations of the Supreme Court in Muhammad Khan v. Dost Muhammad and others P L D 1975 S C 607 furnish a guideline on the true interpretation of section 103, Cr.P.C.:-- "However, that may be, the requirement of section 103, Cr.P.C. is not absolute in the sense that the failure to comply with it, will make the search illegal. As observed already the object is to guard against possible chicanery and concoction. Therefore, Courts will ordinary insist on a strict compliance with this requirement and view its non-compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court."

12. It would be seen that the requirement of associating public witnesses even in case of personal searches is to ensure that the testimony given in the Court in regard to the result of his search should not depend upon the police officers alone but also upon the evidence of independent persons and that all possibilities of mischief be minimized by the availability of independent persons and no one should be at the mercy of only the Investigating Officer. In the present case Ashiq Hussain Shah P.W.4 had information with regard to the possession of counterfeit currency notes by the appellant and alongwith the police party he had effected the recovery at a place which is in the heart of village Serai Saleh on G.T. Road adjacent to a Patrol Pump. It would neither have been inconvenient nor cumbersome for the Additional S.H.O. to pick up at least one or two witnesses from the neighbourhood of the place of search.

13. In Salvator Belvisi v. The State cited above, Nazeer Ahmad Mehmood, J. as his Lordship then was while relying upon Bur Singh v. The Crown I L R 11 Lah. 555 held that even if it be assumed that some forged currency notes were recovered from the appellant therein, to convict him for an offence under section 489-C, P.P.C., it was necessary to establish that he had the knowledge that the dollar notes that he had in his possession were forged ones and that he really intended to use them as genuine ones. In Amanat Ali v. State 1971 P Cr. L J 53 Aslam Riaz Hussain, J. (as his Lordship then was), while relying on Salvator Belvisi's case cited above, was pleaded to hold that in order to bring the case within the purview of section 489-C, P.P.C. it is not only necessary to prove that the accused was in possession of the forged notes but it has to be established further that at the time of possession he knew them to be forged or had reason to believe them to be forged and also that he intended to use them as genuine or that they might be used as genuine. In the instant case there is not an iota of evidence to show that these two essential ingredients of section 489-C, P.P.C. have been satisfactorily brought home to the appellant.

14. In view of the above discussion neither the recovery of the counterfeit currency notes from the conscious possession of the appellant is proved nor the necessary ingredients of section 489-C have been established by the prosecution. The appeal, therefore, merits to be accepted.

15. In consequence I set aside the order of the learned Additional Sessions Judge dated 6-1-1991 and acquit the appellant. He may be released forthwith unless he is required in any other case. H.B.T./1235/P???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.