SHAFIQUE SAJID Versus THE STATE Asadullah Khan , Mir Rehman Khan, A.A.G.

This appeal is by Shafique Sajid, resident of village Mamukanjan, Tehsil and District, Faisalabad, who was convicted under section 489-C of the Pakistan Penal Code by the learned Sessions Judge, Peshawar on 8-2-1988 and sentenced to six months' R.I. with a fine of Rs. 1,000 or in default thereof to further S.I. for two months.

2. The prosecution case against the appellant as disclosed at the trial is that on 16-4-1986 at 4-20 p.m. the appellant was found present on the platform of Peshawar Cantt. Railway Station near Luggage office. He was holding a plastic shopping bag in his hand. He was suspected by the police party present on the Railway platform and on search of his plastic bag by Sharafatullah FC, Railway Police, some heroin powder was recovered. From his personal search, five forged currency notes of Rs.100.denomination were also precovered from the side pocket of is shirt. Daulat Khan S.H.O. took the currency notes in his possession vide recovery memo. Ex. PC/1. A Murasila Ex.P.l, to this effect was sent to the police station where the present case was registered against the appellant vide F.I.R. Ex.PA. The currency notes were forwarded to the State Bank of Pakistan for opinion. The Expert's Report Ex.PC shows that the Currency notes were found to be forged by the Currency Officer of the State Bank of Pakistan.

3. At the trial, Sharafatullah FC (P.W.2) and Daulat Khan, S.H.O. (P.W.4) supported the prosecution case as to the recovery of the forged currency notes from the-possession of the appellant. Khudadad Khan Masud (P.W.5) was posted as a Magistrate 1st Class, Peshawar. On 19-4-1986 he recorded the confessional statement of the appellant after observing all the legal formalities. In his confessional statement Ex.P.W.5/1, the appellant stated that five currency notes of Rs.100 denomination were given to him by his friend Habib at Dara Adam Khel which he kept in his pocket and from there he went to Railway Station, Peshawar for going to Faisalabad. In his statement under section 342, Cr.P.C., the appellant retracted from his confessional statement and stated that he is a College student studying in 3rd Year at Government College, Faisalabad and that while he was sitting all alone .on a bench at the Railway Station, he was falsely involved in the case because the police had found a bundle lying near the luggage office.

4. From the 'prosecution evidence and the confessional statement of the appellant, it is fully established that the aforesaid forged currency notes were recovered from the possession of the appellant. The contention of the learned counsel for the appellant, however, is that mere possession of forged currency notes was not enough to prove the case within the provision of section 489-C, P. P.C. since was bound to establish further that the appellant the prosecution kept the forged currency notes in his possession knowing or having reason to believe 'the same to be forged or counterfeit and intended to use them ,as genuine or the same might be used as genuine. In the absence of any proof to this effect, an essential ingredient of the offence had not been proved, therefore, the appellant was not liable to conviction under section .489-C, P.P.C. Reliance is placed by the learned counsel on P L D 1961 (WP) Karachi 342 wherein it was held that under section 489-C, Penal Code; the mere possession of forged notes is not an offence under the Penal Code. In order to bring a case within the purview of section 489-C of the Code, it is not only necessary to prove that the accused was in possession of the forged notes, but it should be further, established (a) that at the time of his possession he knew the notes to be forged or had reason to believe them to be so, (b) that he intended to use them as genuine or that they might be used as genuine. The onus lies on the prosecution .to prove the circumstances which lead clearly and irresistibly to the inference that the accused had the intention to foist the notes on the. Public. Reference is also made to Amanat Ali versus The State (1971 PCr.LJ 537). The contention raised by the learned counsel for the appellant is not without force. There is nothing on the file to 'show that the appellant knew or had reason to believe that the currency notes recovered from his possession were forged or counterfeit and that he intended to use them as genuine or that they might be used as genuine. In the absence of any material to establish this ingredient of the offence under section 489-C of the Penal Code, conviction of the appellant cannot be sustained.

5. For the aforesaid reasons, the appeal is accepted, the conviction and sentence of the appellant are set aside and he is acquitted of the charge. He is to be released forthwith from the Jail but shall not be so released if detained is some other case.

M.Y.H./607/P Appeal allowed.