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Criminal Appeal No. 238 of 1960, decided on 14th December 1960. .
S. 133‑Approver's testimony--- Corporation necessary.
S. 489‑C‑Mere possession of forged currency notes, no offence‑Knowledge that they were forged ones as well as intention to use them, necessary‑Onus of proving such intention‑Lies on prosecution.
Under section 489‑C, Penal Code, 1860, the mere possession of forged notes is not an offence under the Penal Code, 1860. 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 circumstances which lead clearly, indubitably and irresistibly to the inference that the accused had the intention to foist the notes on‑ the public.
M. A. Naqvi for Appellant.
Zahoor ul Haq for Respondent.
Dates of hearing: 14th, 21st and 28th November 1960.
Salvator Belvisi accused has come up in appeal against the order dated 14‑3‑60 of Mr. Ahsan‑ul‑Haq Qureshi, Additional Sessions Judge, Karachi, who convicted the appellant under sections 120‑B and 489‑C of the Pakistan Penal Code and sentenced him to two year's R. I. on either count. Originally, one Mahmood Shah was also tried along with the appellant but the learned Additional Sessions Judge acquitted him.
2. Briefly stated, the prosecution case is that the appellant had a considerable number of forged hundred dollar notes with him which he wanted to exchange with Pakistani currency. To that end once in 1957 he approached Muhammad Arif P. W. 4 who has his cigarettes shop in Elphinstone Street as he used to visit his shop in connection with his smoking requirements, and showing him some dollar notes asked him if he could help him in getting these sold for Pakistani currency at the rate of Rs. 6 or 6‑8‑0 per dollar. On the occasion of one of his visits to Muhammad Arif's shop the appellant was accompanied by another foreigner. Muhammad Arif P. W. however declined to assist the appellant in his plan. One Sajid Hussain Warsey however introduced Afzal Ahmad P. W. 5 (the approver in the present case) to Belvisi appellant and two other foreigners, one of whom was Schllinger (the accused in this case who absconded during the proceeding before the committing Court). After having thus come into contract with Afzal Ahmad approver Belvisi asked him to meet him in the office of Mirza Carpet Industries in Sadder, where he would suggest to him some business. Accordingly, Afzal Ahmad approver met Belvisi appellant, who was then accompanied by Schllinger accused (absconder) and one other foreigner at 10 or 11 a.m. on 6‑11‑57 at the office of Mirza Carpet Industries. The appellant suggested to Afzal Ahmad approver during this meeting to get him some purchasers for the dollar notes for which the approver would get his commission. When the approver suggested to him that the dollar notes could be exchanged at the bank, Belvisi told him that they being forged ones had to be sold to someone who did tot know what a genuine dollar note looked like. He gave four dollar notes of 100 dollars each to Afzal Ahmed approver during this meeting. Afzal Ahmed approver fell in with the proposal and told the appellant that he would search for some customers. After the meeting the approver happened to meet his landlord Mahmood Shah (accused since acquitted) in Saddar and told him that he had in his possession four forged notes of 100 dollars each and that he wanted to exchange them for Pakistani currency. He and Mahmood Shah met one broker Ibrahim in the Regal Restaurant and the approver told him that he was in search of customers for the forged dollar notes. Ibrahim broker told the approver he would procure some purchasers for the dollar currency and that he had better meet him in the dining room of the City Railway Station on 8‑11‑57. Accordingly, the approver accompanied ‑by Mahmood Shah and Ibrahim broker reached the dining room of the City Railway Station on 8‑11‑57 at about 9 or 10 a.m. Mr. Maqbool Khan P. W. 1, Police Inspector, Crimes, Hyderabad Division was already present there. He was introduced to the approver by Ibrahim broker as Secretary to Mr. Yousuf Haroon. Thereafter Ibrahim broker went away. Afzal Ahmed approver told Mr. Maqbool that he had 30 thousand dollars in notes of 100 dollars each which he could offer in exchange at the rate of Rs. 4‑4‑0 per dollar. When Mr. Maqbool P. W. asked to be shown the dollar notes the approver gave him two hundred dollar notes that were then in his possession since the other two he had already passed on to Mahmood Shah accused (since acquitted) as the latter wanted to see them. After handling these two notes Mr. Maqbool P. W. returned them to the approver and went out saying he was going to fetch the money from his man. About 5 minutes later Mr. Maqbool P. W. returned with some policeman including P. W. 3 Abdul Jabbar, Police Inspector, City Railway Police Station, and the approver and Mahmood Shah accused were marched off to the City Railway Police Station where Mr. Maqbool Khan P. W. disclosed to the approver that he was a Police Inspector. Thereafter he searched the persons of the approver and Mahmood Shah accused and recovered two hundred dollar notes each from both of them. Mr. Maqbool Khan P. W. took these dollar notes into his possession vide Memo. Exh. 4‑A therein he entered the numbers of these dollar notes. Muhammad Ameen, licensed Cooly Jamadar, ‑City Railway Station, Karachi, P. W. 2 and one Shaikh Muhammad Yamin, Contractor, Railway Station, Karachi City were present at the time of this recovery and they attested the Memo. Exh. 4‑A. Abdul Jabbar P. W. arrested the approver and Mahmood Shah accused but the next day they were allowed bail.
3. On 10‑11‑57 Mr. Maqbool Khan contacted Abdul Jabbar P. W. 3 and asked for his help in another trap that he had planned. Abdul Jabbar P. W. took four armed policemen with him and joined Mr. Maqbool Khan P. W. near the Railway Station where he and other policemen took their different positions by way of ambush. A taxi car KAP 2110. driven by one Juman Khan came there at about 12 noon and was stopped by Abdul Jabbar P. W. Belvisi appellant, Schllinger accused (absconder), Warsey and Afzal Ahmed got out of this car. Belvisi accused had the brief case Article E in his hand. All the occupants of the car were taken to the police station with their hands raised. At the police station Mr. Maqbool Khan P. W. recovered 10 dollar notes of 100 dollars each from the brief case that Belvisi carried in his hand and 30 dollars notes of the denomination of 100 dollars each from the belt that Schllinger had tied round his waist. Maqbool Khan P. W. took these notes into his possession vide Memo. Exh. 4‑B in the presence of Muhammad Ameen, Cooly Jamadar P. W. 2 and Henry Alias D. W. There after Maqbool Khan registered a case under section 489‑C P. P. C. vide F. 1. R. Exh. 4‑A and took the currency notes to the American Embassy where he contacted Mrs. Culpeper, Chief Disbursing Officer, U. S. A. Embassy in Pakistan and submitted them to her expert scrutiny. These notes were further forwarded to U. S: Secret Service Washington D. C. in two separate instalments on different dates where they were examined by Mr. Russel Danial, Deputy Chief U. S. Secret Service, Washington D. C. who by his affidavit dated 22nd November 1957, respect ing the four 100 dollar notes Exh. 4‑D and by his affidavit dated the 13th December 1957, Exh. 4‑E regarding the other 40 hundred dollar notes pronounced them to be counterfeit,
Mrs. Jane Culpeper herself appeared before the Committing Magistrate as P. W. 2 and expressed the opinion on examining the recovered dollar notes that they were counterfeit. As according to Ilmul Huda F. C. P. W. 6 Mrs. Jane Culpeper had gone away to U. S. A. and was not available for giving her evidence in the Sessions Court, her statement was transferred to the Sessions file under section 2 8, Cr. P. C. to be read in evidence As already mentioned Schllinger accused was allowed bail by the Court and he absconded on 14‑11‑57. On the same day viz. 14‑11‑57 (sic) Afzal Ahmad made a confession before Mr. Wali Muhammad Shah, Magistrate and was tendered pardon and made an approver. After the completion of the investigation Maqbool Khan P. W. challaned the accused on 14‑6‑58.
4 The appellant pleaded not guilty to both the charges. He denied that he had entered into any conspiracy for using forged dollar notes knowing them to be counterfeit or that any dollar notes were recovered from his possession. He specifically denied his having ever had any talk regarding dollar notes with Muhammad Arif P. W. or his having met Afzal Ahmad approver along with Schllinger at the Mirza Carpet Industries. He admitted that he along with Schllinger and one Warsey and the taxi driver and approver Afzal Ahmad were detained and taken to police station on 10‑11‑57 but denied that the brief case Article E belonged to him. He further denied all knowledge of recovery of any dollar notes from Afzal Ahmad and Mahmood Shah on 8‑11‑57 and ascribed the case to the wish of the police who, he stated, can easily influence‑ persons of the type of the P. Ws. produced in this case for false implication and described the evidence produced as having been fabricated by the police. It is not necessary to examine the statement of Mahmood Shah accused who has since been acquitted.
5. The prosecution case against the appellant is two‑fold firstly, that he entered into a conspiracy with Afzal Ahmad approver for palming off the forged notes on public as genuine and, secondly, that the appellant was found in possession of forged dollar notes which the appellant intended to sell away knowing them to be forged dollar notes. I am not at all satisfied that any case under section 120.B, P. P. C. is made out against the appellant. Although Afzal Ahmad approver has alleged that he had met the appellant and Schllinger at the office of Mirza Carpet Industries on 6‑11‑57 and there he had been commissioned to secure purchasers for the forged dollar notes, no corroboration of the evidence of the approver is forthcoming on this point. Significantly enough no one has come forward from the Mirza Carpet Industries to say that any meeting between Afzal Ahmad approver and Belvisi appellant took place on their premises although Afzal Ahmad approver would have us believe that a man was sitting in the office only about 5 paces away from them. Surely, such a person could have come forward to support Afzal Ahmad P. W. in his allegation that he and Belvisi appellant had met at Mirza Carpet Industries on 6‑11‑57. It is curious that even Sajid Hussain Warsey who has been described by Afzal Ahmad P. W. as the person who introduced him to Belvisi appellant has also not been produced. I do not quite see how, with such blatent defects in the prosecution case, it can be said that Belvisi had entered into a conspiracy with the appellant for the palming off of the dollar notes.
6. As regards the other charge under section 489 C, P. P. C., the prosecution position hardly seems to be any better. Even if it be assumed that some forged currency notes were recovered from Belvisi, to convict him for an offence under section 489 C .P. P. C., it would be necessary to establish that he had knowledge that the‑ dollar notes that he had in his possession were forged ones and that he really intended to pass them on as genuine ones. It was held in Bur Singh v. The Crown (I L R 11 Lah. 555) that
"Mere possession of forged notes is not an offence under the Indian Penal Code. In order to bring a case within the purview of section 489‑C of the Indian Penal Code it is not only necessary to prove that the accused 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 believe them to be so, (b) that he intended to use them as genuine or that they might be used as genuine."
It was further observed 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 planed off such notes before, or that he was in possession of such and similar notes in such large numbers, that his possession for any other purpose is inexplicable."
The aforesaid case arose out of recovery of 3 forged currency notes of Rs. 100 each.
7. The evidence of Muhammad Arif P. W. is not at all helpful in establishing any such case against, the appellant. He merely stated that Belvisi had once told him that he had some dollar notes with him and that he would sell them at the rate of Rs. 6 or 6‑8‑0 per dollar. His statement does not corroborate Afzal Ahmad approver who has stated that the proposal made to him was that he should sell them at the rate of Rs. 4‑4‑0 per dollar and that he would get his commission on the basis of excess over Rs. 3‑12‑0 per dollar. Nor does it show inde pendently of the statement of the approver that currency notes shown to Arif P. W. were forged ones or that the appellant knew that they were not genuine. The learned Sessions Judge has made a mistake in thinking, as appears from his summary of the prosecution case, that Belvisi had told Arif P. W. that the dollar notes with him were forged ones. There is not a word to that effect in the testimony of Muhammad Arif P. W.
8. It is true that Muhammad Ameen P. W. has come forward as a witness regarding the recovery of 10 dollar notes from the brief case of Belvisi appellant, but it is significant that Abdul Jabbar P. W. 1. who claims to be present on 10‑11‑57 when the search of the persons of the appellant and Schllinger (accused absconder) was conducted does not say a word regarding the recovery of any dollar notes from Belvisi's brief case. Muhammad Ameen P. W. is a Cooly Jamadar and was not only an attesting witness regarding the recoveries that took place on 10‑11‑1957 but was also a witness regarding recoveries that took place from Mahmood Shah and Afzal Ahmed on 8‑11‑57. It transpired from his evidence that he‑had been a mashir in some other cases of the police also. The suggestions of the appellant that such a witness can be under the influence of the police associated with railway is not without some plausibility. It is unintelligible why different persons could not be made witnesses of these recoveries. Of course, Henry Alias was also a witness of the recoveries on 10‑11‑57 but the prosecution did not in the first instance produce him in Court and he was summoned at the instance of the accused. In the first' instance, he denied that anything was recovered from Belvisi's person and admitted that a brief case was lying on the table but stated that he did not remember who opened it. But in his cross‑examination when he was confronted with the mashirnama Exh. 4‑B that he had signed, he stated that as far as he remembered what was stated in the mashirnama was correct. But even if it be assumed that the 10 forged dollar notes of 100 dollars each were recovered from the brief case belonging to Belvisi it is not quite clear how he can he said to have had knowledge that the notes contained C therein were forged ones and that he intended to use them knowing them to be forged ones, especially when it is not difficult to imagine that he had received these notes from his companions Schllinger from whom 30 such dollar notes were recovered.
9. It may be mentioned here that Belvisi admitted that Afzal Ahmed approver was the occupant of the same car in which he was sitting with Schllinger, Warsey and the driver before their capture on 10‑11‑57, but Afzal Ahmed approver in his state ment in Court, as also in his confession under section 164, Criminal Procedure Code recorded by a Magistrate, does not .so much as make any reference to the events of 10‑11‑57. He does not mention that he knew anything about what happened on 10‑11‑57. Even Maqbool Khan P. W. does not mention that Afzal Ahmad approver was also present on 10‑11‑57. It is only Abdul Jabbar Khan P. W. who mentioned this circumstances. It was however admitted by Belvisi appellant that Afzal Ahmed approver was also present with them on that day. But it is not clear from the record as to the circumstances under which Afzal Ahmed approver happened to be present with the appellant on that day. One is, therefore, left completely in the dark as to the knowledge of Belvisi appellant regarding the genuineness or otherwise of the currency notes alleged to have been recovered from him or as regards his purpose with respect to the possession thereof.
10. It is curious that the prosecution has failed to produce some very material witnesses who could have corroborated the version given by Afzal Ahmed P. W. I have already mentioned that somebody from the Mirza Carpet Industries should have been produced to afford some corroboration to the version of the approver that some conspiracy was hatched at Mirza Carpet Industries. I have also mentioned the omission of the prosecu tion to produce Sajid Hussain Warsey who also was an important link in the chain of circumstances suggesting a conspiracy. I fail to understand why another material witness, namely, Ibrahim broker has not been produced by the prosecution. This person has been described by Afzal approver as having been contacted for procuring some purchasers for the forged currency notes. The testimony of this person would seem to be necessary for furnishing corroboration to the approver on a material particular.
11. Nor is it clear why no case was registered on 8‑11‑57 after the alleged recovery of forged dollar notes had been made from Afzal Ahmed and Mahmood Shah, if indeed, Afzal Ahmed approver was seeking to sell the forged dollar notes in pursuance of a conspiracy, and Maqbool Ahmed P. W. was already in possession of information regarding this conspiracy. At all events, it is unintelligible why if Maqbool Khan, Sub-Inspector had come to know that Afzal Ahmed approver had tried to sell the dollar notes on 8‑11‑57 in pursuance of a conspiracy, no case for a conspiracy was registered even on 10‑11‑57. when the F. I. R. was recorded, especially in view of the circumstance that the second trap of 10‑11‑57 had followed the interrogation of Afzal Ahmed P. W. and Afzal Ahmed was also present with the appellant and Schilinger when they were arrested on 10‑11‑57. The inordinate delay in challaning the accused in this case is another circumstance which remains unexplained. It has been urged by the counsel for the State that delay was due to the currency notes having been sent to U. S. A. for being examined whether they were forged ones but it transpires from the record that the opinion of the expert in U. S. A. had been received back by the end of December 1959. The appellant was arrested in November 1957. The suggestion of the counsel for the appellant that this long interval of time was being utilised to get up evidence connecting the appellant with a conspiracy to foist forged notes on the public is not without plausibility.
12. For the foregoing reasons I do not think that a case beyond all reasonable doubt has been established against the appellant: His conviction and sentence on either count is set aside and he is acquitted.
K. B. A. Appeal accepted.
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