GUL MALI KHAN vs THE STATE

' This appeal is directed against the judgment dated 26-8-2003 recorded by learned Sessions Judge Kohat, whereby Gul Mali Khan appellant was convicted for offence under section 489-C P.P.C. And under section 13 Arms Ordinance and sentenced as under:--

(1) Under section 489-C to suffer R.I. For three years and fine of Rs.10,600, in default whereof to undergo S.-I. For two months.

(2) Under section 13 of the Arms Ordinance to suffer one month S.-I. And fine of Rs.500, in default whereof to undergo one week S.-I. More. Both the sentences were directed to rtin concurrently .

Benefit of section 382-B, Cr.P.C. Was also accorded to the convict-appellant.

2. The prosecution story in brief is that on 27-6-1999 at 7.30 P.M. Complainant Said Badshah Khan S.H.O. Police Station Jangle Khel Kohat alongwith the police party was on routine 'Gasht' near MohallahNai Abadi' Jangle Khel when he found a person roaming in suspicious condition. On asking he disclosed his name as Gul Mali Khan son of Saeed Rehman resident of Tulang Jadeed District Kohat. The personal search of Gul Mali led to recovery of 85 fake currency notes of Rs.1000 denomination each and a .30 bore pistol alongwith charger and bandolier containing 15 rounds of the same bore. He could produce no licence or permit in respect of the pistol. Gul was formally arrested and a case was registered against him. Under section 489-B P.P.C. Read with section 13 Arms Ordinance.

3. The appellant pleaded not guilty to the charge and claimed a trial. The prosecution in order to prove its case produced si* witnesses in all. The appellant in his statement recorded under section 342 Cr.P.C. Denied the prosecution allegation and professed innocence. The appellant also got recorded his statement under section 240 (2) Cr.P.C. And stated that during the days of occurrence his father had sold some property in consideration of Rs.85,000 and that he was in possession of the said money in order to run business. He was not in knowledge nor did he intend to us these notes as genuine. The pistol recovered from his possession was also licensed one.

' He is innocent and falsely implicated in the case. Said Rehman father of the appellant gave the similar statement.Available before .Him,

4. The learned trial Judge, upon consideration of the material

4. Arrived at the conclusion that prosecution has successfully brought home charges against the appellant. He convicted and sentenced the appellant as mentioned and detailed above.

5. Mr. Zafarullah Khan, Advocate for the appellant, contended with vehemence that the impugned judgment and order of conviction is manifestly against the law, facts and material available on the record of the case and findings and conclusions arrived at are, on the face of it, erroneous and illegal and are not sustainable. The learned counsel admitted that forged currency notes were recovered from possession of the appellant but he asserted that there is not an iota of evidence on record either direct or presumptive to prove that the appellant had reason to believe that the currency notes found in his possession were forged or that he intended to use them as genuine.

Mere possession of forged notes is not an offence. Additionally, the learned counsel urged that mandatory provisions of section 103 Cr.P.C. Have not been complied with in this case inasmuch as no disinterested and independent witness from the locality has been associated with recovery proceedings which has made the prosecution case highly doubtful. To substantiate the pleas, reliance was placed on following citations:--

(i) Muhammad Asghar v. The State (1993 PCr.LJ 1909 Federal Shariat Court); (ii) Abdul Ghafoor Bhatti v. The State (1993 PCr.LJ 1128 Karachi); (iii) Zahoor Ahmed v. The State (1995 PCr.LJ 1715 Lahore); (iv) Azmat Khan v. The State (2000 PCr.LJ 1461 Karachi) and (v) Imran Saeed v.The State (2001 PCr.LJ 1365 Peshawar).

6. Mr. Jamshed Khan Advocate, appearing on behalf of the State, supported the impugned judgment and maintained that appellant was fully aware that currency notes in his possession were forged and counterfeit and he intended to use them 8 genuine.

7. I have heard at length the arguments of learned counsel for the parties in the light of the material available on the file and the case-law cited at the bar.

8. It needs no reiteration that mere possession of forged currency notes is not an offence punishable under sections 489-B and 489-C, P.P.C. Unless there is evidence on record to show that the accused appellant kneVy or had reason to believe that the same were forged. In order to bring a case within the purview of section 489-C, P.P.C. It is not only necessary to prove that the accus,ed was in possession of 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 beli6ve thetn to be so, (b) that he intended to use them as genuine or that they mightbe used as genuine. It is not denied that the onus lies on the prosecution to prove circumstances which lead clearly, indubitably and irresistibly to the inference that the accused had the intention to foist the notes on the public. Such intention can be proved by collateral circumstances such as that the accused had planned off such notices before or that he was in possession of such and similar notes in such large numbers, that is possession for any other purpose is inexplicable.

9. In the present case, recovery of forged notes from possession of the appellant has not been controverted. The defence plea is that the notes in question were given to the appellant by his father in order to start a business in his village Jangle Khel and that the appellant had no knowledge or reason to believe that the same were forged. The defence plea has not been believed by the learned trial Judge and tightly so. I see no good reason to disagree with him. The claim of the appellant having no knowledge regarding true nature of currency notes stands belied by a host of circumstances and does not appeal to reason. I am confident that appellant had kept forged notes in his possession for sinister purpose and element of mens rea was there. It may be observed here that the plea has not been taken during the course of investigation and the appellant remained mum throughout. He cannot be allowed to agitate the same at this belated stage. The plea appears to be an afterthought and farfetched. So far as the conviction recorded under section 13 of the Arms Ordinance is concerned, learned counsel for the appellant has not been able to prove that a valid license or permit regarding the pistol recovered from possession of the appellant was produced but the same was not taken into possession by the Investigating Officer. The case-law cited on behalf of the appellant is distinguishable and proceeds on different facts. In the cited rulings the accused were extended the benefit of doubt because they were found to have no knowledge or reason to believe that notes found in their possession were fake or forged.

In the present case, the position is altogether different. The rulings are of no help to the appellant.

10. After deep reappraisal of the evidence I am convinced that prosecution has established its case against the appellant beyond any shadow of doubt and find no reason whatsoever to interfere in the conclusion arrived at by the trial Court in convictions recorded against the appellant and the sentences awarded, resultantly the appeal filed by Gul Mali Khan is dismissed having no force.