1995 P Cr (PLP)

The prosecution case, in brief, is that on 1-7-1988 at about 1-30 p.13%. one Nazar Hussain (not produced) was selling medicines on roadside in Raja Bazar, Rawalpindi. Many people alongwith the complainant Arshad Tanveer and Muhammad Saleem appellant also stood around to the said medicines vendor. The appellant brought out a hundred rupees note in order to purchase medicine when the complainant observed it to be a fake one as he was standing beside the appellant/accused. The appellant was apprehended with the help of Khalid Khan P.W. and was produced before the police alongwith written complaint Exh. P.B. on the basis of which formal F.I.R. E&P.B./1 was recorded by Manik Ali, A.S.I. P.W.4 at Police Station City Rawalpindi. The fake currency note was taken in possession vide memo. Exh. P.C. After registration of the case the investigation was conduct by Manik Ali, A.S.I. F.W.4, who sent the said note to State Bank of Pakistan for its verification. Vide report Exh. PA., P.W.1 Ghulam Sarwar, Accounts Officer, State Bank of Pakistan found the said note to be a fake one. After completion of the investigation, the accused was challaned to Court to face his trial. To prove its case at the trial, the prosecution produced four witnesses. P.W.1 Ghulam Sarwar, Accounts Officer, State Bank of Pakistan, who had examined the currency note and found it to be fake vide his report Exh. PA. P.W.2 Arshad Tanveer complainant had reiterated the facts given in the F.I.R. and has further stated that he had made the report against the appellant and handed him over to the police alongwith the currency note. Khalid Khan, Constable P.W.3 has corroborated P.W.2 on all material points. Manik Afi, A.S.I. P.W.4 conducted the investigation and challaned the appellant to face his trial. When examined under section 342, Cr. P.C. the appellant denied the allegations levelled against him and pleaded to be innocent. However, the appellant neither appeared under section 340, Cr. P.C. in disproof of the charges levelled against him nor did he produce any evidence in his defence. On the basis of the aforesaid evidence, the learned trial Magistrate convicted and sentenced the appellant as indicated above. Learned counsel for the appellant contends that the star-witness namely Nazar Hussain/medicine vendor although was available but he was neither produced in this case nor his statement was recorded under section 161, Cr. P.C. by the police, as such, the prosecution has deliberately withheld the said witness of the occurrence; that the alleged eye-witnesses i.e. Arshad Tanveer P.W.2 and Khalid Khan P.W.3 are the police constables and their presence at the relevant time has not been properly explained by the prosecution; that the alleged occurrence took place on 1-7-1988 and the currency note was referred to Ghulam Sarwar P.W.1 on 22-8-1988, after the expiry of one; month and twenty-two days, its such, there is strong likelihood that the said currency note was changed while it was in police custody; that no witness has been produced to depose that during this period, the alleged note was kept safely and then despatched to State Bank of Pakistan; that the offence under section 489-B, P.P.C. is not made out from the statements of Arshad Tanveer P.W.2 and Khalid Khan P.W.3; that there are material discrepancies in the statements of the P.W s.; that no other recovery of any other fake note from the house of the appellant was effected and there is also nothing on record to show that the appellant belonged to any gang of traffickers in counterfeiting the currency note. On the other hand, learned Suite counsel submits that the prosecution has proved its case through evidence of independent witnesses, who have no enmity whatsoever against the appellant; that the statements of the P.W s. have been recorded after four years of the alleged occurrence and the minor discrepancies were the natural consequence. I have heard the learned counsel for the parties and have perused the record with care. I find force in the arguments of the learned counsel for the appellant that no explanation whatsoever has been offered by the prosecution withhold the evidence of Nazar Hussain medicines vendor, who would have been of much help to prove the case against the appellant by deposing that the alleged currency note was being used to purchase the medicines knowing the same to be a fake one, as such, it can conveniently be inferred that if he was educed as a witness, he would not have supported the prosecution version. I have also considered the intrinsic worth of the evidence of the eye witnesses namely Arshad Tanveer P.W.2 and Khafd Khan P.W:

3. Both of the witnesses belonged to the Police Department and were present at the place of occurrence without any reasonable excuse and had made their statements in a manner, which does not inspire confidence. The assertion made by Arshad Tanveer in the F.I.R. seems to be mere Drama than a reality that when the appellant took out a note of rupees hundred denomination, the witness immediately suspected the same to be a counterfeit currency note and apprehended the appellant at the spot with the help of Khalid Khan P.W

3. This all has happened as if the appellant was a sitting duck and fell prey in the hands of hunter without putting an effective resistance. Moreover, this version was improved upon by the two witness at the trial by stating that the said note was given to the medicine vendor, who suspected the same to be a fake one. It was then that the note was taken by the P.W s. from the said medicine vendor and they apprehended the accused at the spot and produced him before the police. The two versions being materially discrepant from each other cannot be reconciled and thus the statements made by the aforesaid two witnesses would not be Worth reliance so as to base conviction of the accused/appellant. So far as the legal aspect of the matter is concerned, I have anxiously considered the same in the light of the provisions of section 489-B, P.P:C., which requires the prosecution to prove firstly knowledge of the offender regarding the fakcness of the currency note and then the intentional use of the carne as these are the two conditions precedent to convict the accused of the offence of this nature. The important question which arises for the determination in the case 'r' hand is whether the appellant had the knowledge that he had in his Possession a fake currency note and that he tried to use that note knowing the same to be a counterfeit. After considering the evidence on record and the relevant provisions of law, I have reached the conclusion that the appellant had not consciously A kept the note with him knowing the same to be a fake one. If he would have the knowledge that the note was counterfeit or fake, he would have tried to escape from the scene of occurrence when he had passed over the same to the medicine vendor or when the same was taken from him by Arshad Tanveer P.W.2. It was to fill in this lacuna that the alleged said eye-witnesses have to improve their statements at the trial, which stands discarded in the above paras. As such, the prosecution has not been able to prove the important ingredients of section 489-B, P.P.C. against the appellant beyond any 8 reasonable doubt as neither the ocular evidence was worth reliance nor there was any circumstantial evidence which would have linked the appellant with the crime. Besides no other material was recovered from the possession of the appellant so as' to connect him with the crime or at least to show that the appellant was a member of a Gang of traffickers of counterfeiting currency note or that he was keeping other notes of the similar nature. There is still another circumstance, which goes deep into the roots of the version of the prosecution and that is the non-production of the evidence as , to in whose custody the alleged .currency note remained from the date of its recovery to the date of its despatch to the State Bank of Pakistan for its verification as there is a gap of more than one month in the said despatch. C Thus, it cannot be said positively that the alleged currency note was the same which was recovered from the-appellant. Even at the time of trial, the said note was not shown to the P.W s. who would have identified the same. There is no other evidence to connect the appellant with the crime alleged against him. The upshot of the above discussion is that the prosecution has not been able to prove its case against the appellant beyond any reasonable doubt, as such, the appellant is entitled to get the benefit of doubt and acquittal from p the charge alleged against him. I, therefore, accept this appeal, set aside the impugned judgment and acquit the appellant from the charge. He is stated to be in jail. He may be released forthwith, if not required to be detained in any other case. N.H.Q./M-1876/L Appeal accepted