2024 CCJ 32

Other citations: 2024 PCrLJ 326

[Sindh High Court (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

Muhammad Umar—Appellant

versus

VIIIth Additional District and Sessions Judge, Hyderabad and another—Respondents

Criminal Appeal No. S-175 of 2020, decided on 21^st May, 2021.

HEADNOTES

(a)   Penal Code (XLV of 1860) —

— S. 489-B — Criminal Procedure Code (V of 1898), S. 103 — Using as genuine, forged or counterfeit currency-notes or bank-notes — Search to be made in presence of witnesses — Appreciation of evidence — Benefit of doubt — Scope — The case involves an appellant charged under section 489-B, P.P.C. for allegedly possessing forged or counterfeit currency notes — The prosecution’s case hinges on the recovery of currency notes from the appellant’s possession during a police patrolling operation — However, crucially, none of the prosecution witnesses testified that the appellant had knowledge or reason to believe that the currency notes were fake — Mere possession of forged currency notes is not an offense unless the accused knew or had reason to believe they were forged — Moreover, the prosecution’s reliance on a certificate from the State Bank of Pakistan to prove the authenticity of the currency notes is undermined by delays in sending the notes for verification and the absence of the issuing officer’s testimony — This procedural lapse diminishes the evidentiary value of the certificate — Additionally, there are discrepancies regarding the identification and denomination of the recovered currency notes, which were not mentioned in the charge or confronted to the appellant during interrogation, further weakening the prosecution’s case — Furthermore, there are violations of procedural requirements such as the absence of independent witnesses from the locality during the recovery process, as mandated by section 103, CrPC — The failure to comply with this provision casts doubt on the integrity of the recovery operation — In light of these legal and procedural deficiencies, the appellant is entitled to the benefit of the doubt, as the prosecution has failed to prove its case beyond a reasonable doubt — As a result, the appellant’s appeal is allowed, and the judgment convicting him is set aside, leading to his acquittal and release from custody. [Several Paragraphs]

Case-law referred.

(b)   Criminal Procedure Code (V of 1898) —

— S. 489-B — Using as genuine, forged or counterfeit currency-notes or bank-notes — Scope — In order to constitute offence under section 489-B, P.P.C. it is necessary that the person from whose possession any fake currency is recovered, must have knowledge or reason to believe that the currency notes in question are forged or counterfeit. [12^th Paragraph]

(c)   Criminal Procedure Code (V of 1898) —

— S. 103 — Search to be made in presence of witnesses — Scope — The officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted, so as to lend credence to such actions, and to restore public confidence — This aspect of the matter must not be lost sight of indiscriminately and without exception. [28^th Paragraph]

(d)   Criminal trial —

— Benefit of doubt — Scope — Prosecution is bound under the law to prove its case against accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. [32^nd Paragraph]

(e)   Criminal trial —

Qambar Ali Jamali for appellant.

Ms. Rameshan Oad, Assistant Prosecutor General, Sindh for the State.

Date of hearing: 21st May, 2021.

JUDGMENT

Muhammad Saleem Jessar, J:—Through this Criminal Appeal appellant Mohammad Umar has assailed judgment dated 03.11.2020 handed down by VIIIth Additional Sessions Judge, Hyderabad in Sessions Case No.513 of 2019 (re: The State v. Mohammad Umar) being outcome of FIR No.157/2019 under section 489-B, P.P.C., registered at P.S. Qasimabad, whereby appellant has been convicted for offence punishable under section 489-B, Р.Р.С., and sentenced to suffer R.I. for ten (10) years and to pay fine of Rs. 1,00,000/- (Rupees One Lac only) and in case of failure to pay fine, to suffer S.I. for six months more. The appellant was however, extended benefit of section 382-B, Cr.P.C.

Concisely, the facts of prosecution case, as disclosed in the above said FIR lodged by complainant ASI Allah Warayo Pitafi at Police Station Qasimabad Hyderabad, are that on 04.08.2019 he along with his subordinate staff namely PC-3253 Nawaz Ali, PC-3773 Ghulam Yameen, PC-2156 Javed Ali and DPC-456 Ali Muhammad Zardari went for patrolling duty in a police mobile having registration No.SPF-676 vide entry No.23 at 1930 hours. During course of patrolling when they reached at Anwar Villaz Chowk, they started snap checking. During snap checking they saw that one person was coming from Technical College Road having one black color shopper in his hand; however, on seeing police party he turned back. Due to suspicious condition of said person, complainant stopped him with the help of subordinate staff. On query he disclosed his name as Muhammad Umar son of Noor Muhammad by caste Khaskheli, permanent resident of Nawabshah and temporary resident of House No.A-40, Samoo Goth, Malir 15, Karachi. ASI Allah Warayo Pitafi conducted his personal search in presence of PC Nawaz Ali and PC Ghulam Yameen and recovered cash of Rs. 1730/- from the right pocket of his Qamiz along with his CNIC, one I-Phone model 1387 in which SIM of Ufone was laying. Thereafter, ASI Allah Warayo Pitafi took search of polythene bag possessed by the said person and recovered Rs.600,000/- along with three TC prize bonds. On inquiry be disclosed that three prize bonds as well as currency notes i.e. 100 currency notes of Rs.5000/- denomination each and 100 currency notes af Rs.1000/- denomination each were fake. The said currency notes contained serial numbers as under:-

Eight currency notes bearing same serial number AF-4601203 of Rs.5000/each, AF-4601003 (5 notes), AF-4601202 (8). AF-4601204 (5), AF-4601006 (5), AF-4601010 (4), AF-4601108 (4), AF-4601107 (4), AF-4601007 (3), AF-4601208 (3), AF-4601205 (3), AF-4601002 (3), AF-4601009(3), AF-4601104 (3), AF-4601210 (3), AF-46012012 (3), AF-4601110 (2), AF-4601101 (2), AF-4601103 (2), AF-4601207 (2), AF-4601206 (2), AF-4601109 (4), AF-4601209 (2), AF-4601209 (1), AF-4601101 (1), AF-4601110 (1), AF-4601007, AF-4601207, AF-4601007, AF-4601207, AF-4601007, AF-4601105, AF-4601003, AF-4601201, AF-4601104, AF-4601001, AF-4601004, AF-4601102, AF-4601005, AF-4601002, AF-4601105, AF-4601103, AF-4601106 and three prize bonds No.B060411, 8060420 and 8060177 of Rs. 7500/- each.

100 currency notes of Rs. 1000/- were with following numbers:-

NQ-2792368, NQ-1792378, NQ-2792369, NQ-2792395, NQ-792701, NQ-2792786, NQ-2792783, NQ-2792782, NQ-2792716, NQ-2792309, NQ-2792771, NQ-2792710, NQ-2792709, NQ-2792701, NQ-2792320, NQ-2792365, NQ-2792380, NQ-2792370, NQ-2792308, NQ-2792705, NQ-2792773, NQ-2792772, NQ-2792305, NQ-2792304, NQ-2792779, NQ-2789377, NQ-2789476, NQ-2789025, NQ-2789665, NQ-2789662, NQ-2789664, NQ-2789908, NQ-2789671, NQ-2789690, NQ-2789688, NQ-2789663, NQ-2789681, NQ-2789687, NQ-2789689, NQ-2789599, NQ-2789800, NQ-2789801, NQ-2789802, NQ-2789830, NQ-2789831, NQ-2789866, NQ-2789881, NQ-2789882, NQ-2789883, NQ-2789884, NQ-2789887, NQ-2789888, NQ-2789889, NQ-2789897, NQ-2789898, NQ-2789899, NQ-2789563, NQ-2789580, NQ-2789581, NQ-2789587, NQ-2789588, NQ-2789589, NQ-2791005, NQ-2791006, NQ-2791010, NQ-2791015, NQ-2791017, NQ-2791018, NQ-2790019, NQ-2791020, NQ-2791021, NQ-2791022, NQ-2791023, NQ-2791024, NQ-2791032, NQ-2791033, NQ-2791034, NQ-2791036, NQ-2791037, NQ-2791038, NQ-2791039, NQ-2791040, NQ-2791041, NQ-2791042, NQ-2791043, NQ-2791044, NQ-2791045, NQ-2791048, NQ-2791051, NQ-2791052, NQ-2791061, NQ-2791064, NQ-2791084, NQ-2791075, NQ-2791085, NQ-2791086, NQ-2791091, NQ-2791092, NQ-2791093, NQ-2791000.

Then complainant sealed case property and prepared memo of arrest and recovery in presence of PW Nawaz Ali and PC Ghulam Yameen and then accused and case properties were brought at police station where complainant lodged FIR and then entrusted case papers to ASI Najmuddin for conducting investigation who sent the sealed property to State Bank of Pakistan Hyderabad for verification.

After completing usual investigation charge sheet of the case was submitted in the Court of Civil Judge and Judicial Magistrate-VIII, Hyderabad. Thereafter, a formal charge was framed against accused on 24.10.2019 vide Ex.02 to which he pleaded not guilty vide his Plea Ex.02/A, and claimed to be tried while denying the allegations.

In order to prove its case, prosecution examined PW.1 complainant ASI Allah Warayo Pitafi at Ex.03, who produced departure and arrival entries as Ex.3/A and Ex.3/B, memo of arrest and recovery and FIR as Ex.3/C and Ex.3/D respectively. PW-02 PC Nawaz Ali (mashir of arrest and recovery as well as mashir of site inspection) was examined at Ex.04, who produced memo of site inspection as Ex.4/A. PW-03 SIP Najamuddin (investigating officer) was examined at Ex.05, who produced departure and arrival entries as Ex.5/A and Ex.5/B, police letters addressed to the Chief Manager State Bank of Pakistan as Ex.5/C and Ex.5/D and report of State Bank of Pakistan Hyderabad as Ex.5/E. Thereafter, learned ADPP for the State closed prosecution side vide his Statement Ex.06.

Statement of accused under section 342, Cr.P.C. was recorded vide Ex.07, wherein he denied the allegations levelled against him. However, neither he got himself examined on oath, nor produced any witness in his defence.

After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused/appellants, as stated above. Against said judgment instant appeal has been preferred by the convicted accused.

I have heard learned counsel for the appellant and learned A.P.G. appearing for the State and also perused the material available on the record.

Learned counsel for the appellant submitted that there are contradictions in the statements of prosecution witnesses. He next submitted that description/denomination of currency notes and that of prize bonds were not mentioned in the charger resides the same were also not confronted to the appellant at the time of his examination under section 342, Cr.P.C. Learned counsel drew attention of the Court towards entry No.28 available at page 13 of the paper book and submitted prize bonds also does not find mention therein. He further submitted that currency was sent to the State Bank with the delay of about 12 days, hence, according to him, it was fatal to the prosecution case. In support of his contention, he placed reliance upon the case of Mohammad Saleem v. The State (1995 PCr.LJ 662). He next submitted that report furnished by concerned officer of State Bank of Pakistan was not confronted to the appellant at the time of his recording of his statement under section 342, Cr.P.C., nor the person who issued such report/certificate was examined before the trial Court. He further submitted that letter dated 08.08.2019 sent by the I.O. to State Bank of Pakistan also lacks availability of prize bonds. He further submitted that appellant is government servant and has got enmity with one NADRA Official on whose behest, police have implicated him in false case by foisting alleged currency notes upon him which, otherwise, could easily be obtained from the market. He further submitted that though there is admission of the prosecution witnesses regarding place of incident to be thickly populated area, despite that no effort was made to associate any independent person as witness/mashir, as such there is clear violation of section 103, Cr.P.C. In support of his contentions; he placed reliance upon the case-law reported as Tariq Pervez v. The State (1995 SCMR 1345), Abrar Ahmed alias Abrar v. The State (PLD 2008 Karachi 325), Ismail and 2 others v. The State (2016 PCr.LJ 584), Asmat Khan v. The State (2000 PCr.LJ 1461), Peeral v. The State (2020 PCr.LJ 1147). He finally submitted that prosecution has not come with clean hands and the charge levelled against the accused has not been established, therefore, appellant may be acquitted of the charge by giving him benefit of doubt.

Conversely, learned Assistant Prosecutor General, Sindh appearing for the State, opposed the appeal on the ground that no ill-will or enmity has been claimed by the appellant against the police. She further submitted that there is no denial of the recovery. As far as, non- examination of Officer from the State Bank of Pakistan, who issued the report/certificate with regard to currency notes is concerned, she submitted that it was not necessary. However, she admitted that no proper certificate was issued by the State Bank of Pakistan regarding fakeness of the currency notes allegedly recovered from the accused appellant, however, even then she opposed the appeal.

In instant case accused/appellant has been charged for committing offence under section 489-B, P.P.C. For the sake of convenience, the contents of section 489-B are reproduced hereunder:

“489-B. Using as genuine forged or counterfeit currency notes or bank notes.—Whoever sells to, or buys or receive from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

From the bare perusal of above-quoted provision of law, it is apparent that in order to constitute offence under section 489-B, P.P.C. it is necessary that the person from whose possession any fake currency is recovered, must have knowledge or reason to believe that the currency notes in question are forged or counterfeit. In order to examine as to whether prosecution witnesses have deposed regarding knowledge of the appellant or the fact that he had reason to believe that the currency notes possessed by him were forged or counterfeit, or for that matter, other ingredients for constituting the offence under the aforesaid section, it would be advantageous to go through the evidence of prosecution witnesses.

PW-01, complainant Allah Warayo Pitafi in his evidence deposed that on 04.08.2019 he along with subordinate staff PC-3253 Nawaz Ali, PC-3773 Ghulam Yameen, PC-2156 Javed Ali and DPC-456 All Muhammad Zardari went for patrolling duty in a police mobile having registration No.SPF-676 vide entry No.23 at 1930 hours. After patrolling different areas when they reached at Anwar Villaz Chowk, they started snap checking. During snap checking they saw that one person was coming from Technical College Road having one black color shopper in his hand; however, on seeing police party he turned back. Due to suspicious condition of said person, complainant intercepted and got him stopped with the help of subordinate staff. On query he disclosed his name as Muhammad Umar son of Noor Muhammad by caste Khąskheli, permanent resident of Nawabshah and temporary resident of House No.A-40 Samoo Goth Malir 15 Karachi. ASI Allah Warayo Pitafi conducted his personal search in presence of PC Nawaz Ali and PC Ghulam Yameen and recovered cash Rs.1730/- from the right pocket of his Qamiz along with his CNIC, one I-Phone model 1387 in which SIM of Ufone was laying. Thereafter ASI Allah Warayo Pitafi took search of polythene bag possessed by said person which contained 100 currency notes of Rs.5000/- denomination each and 100 currency notes each of Rs.1000/- denomination and three prize bonds of Rs.7500/- each bearing same serial number. He further deposed: “We found that currency notes to be fake/forged”.

In cross-examination he admitted that the place of incident is thickly populated area but nobody was available at that time. They checked 10/15 motorcycles and 3/4 cars within 15 minutes. The accused returned at the distance of five/six paces. He apprehended accused. He further admitted that black shopper is not available in the court. He did not associate any private mashir due to non availability. He wrote memo of arrest and recovery through light of hand torch in vehicle. Accused was apprehended firstly by PC Nawaz Ali. He consumed 40/50 minutes in preparing the memo of arrest and recovery while he consumed about two hours in completing all formalities. He sealed case property at the spot.

PW-02, PC Nawaz Ali has deposed that on 04.08.2019 they left police station Qasimabad for patrolling duty vide entry No.23 1930 hours along with ASI Allah Warayo, PC Ghulam Yameen, PC Javed and DPC Ali Muhammad. During course of patrolling they apprehended the accused. ASI Allah Warayo conducted personal search of accused and recovered cash Rs. 1730/- along with CNIC. ASI Allah Warayo also recovered one shopper from the hand of accused and on checking found it containing 100 currency notes of Rs.5000/- and 100 currency notes of Rs. 1000/- each and three prize bonds of Rs.7500/-each bearing same serial numbers. He also deposed, “We found that currency notes to be fake/forged”. Then ASI Allah Warayo arrested the accused in his presence and PC Ghulam Yameen. ASI Allah Warayo then sealed case property and prepared memo of arrest and recovery and they signed on it. Then accused and case property were brought at police station where ASI Allah Warayo lodged FIR against the accused.

In cross-examination of this witness too, almost same questions, which were put in cross-examination of complainant, were put to him with almost similar replies.

From the perusal of entire evidence adduced by prosecution before the trial Court, it is evident that none of the prosecution witnesses has said a single word that the appellant had knowledge or reason to believe that the currency notes possessed by him were forged or counterfeit. What the complainant, who allegedly effected recovery of the said currency notes etc. and the mashir P.C. Nawaz Ali have said is; “We found that currency notes to be fake/forged”. It is not understandable as to what was the criteria of their finding such currency notes to be fake/forged, particularly when they have not deposed a single word that the accused/appellant himself stated that he had knowledge or reason to believe that such currency notes were fake. On the other hand, the accused has pleaded in clear terms that he did not hand over any such notes to the complainant. In this view of the matter, a very important ingredient for constituting offence under section 489-B, P.P.C. is lacking in instant case. In this connection, reference may be made to the case of Ali Asghar v. The State, reported in 1992 PCr.LJ 1913 [Karachi], wherein this Court while dealing with this point held as under:

“13. Even if it is admitted for argument sake that the above forged currency notes were recovered from the possession of the appellants there is nothing on record to even faintly suggest that the appellants knew or had reason to believe that the same were forged. It may be noted that mere possession of forged currency notes is not an offence.”

In the afore-cited case, reference was also made to a case from Indian Jurisdiction i.e. Bur Sing v. The Crown reported in AIR 1931 Lah. 34, wherein it was held:

“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.”

(Emphasis is supplied for the sake of convenience)

Reference may also be made to the case of Salvator Belvisi v. The State reported in PLD 1961 Karachi 342, wherein it was held as under:

“But even if 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 be said to have had knowledge that the notes contained 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 companion Schillinger from whom 30 such dollar notes were recovered.”

(Emphasis is supplied for the sake of convenience)

Yet in another case reported as Abrar Ahmed alias Abrar v. The State (PLD 2008 Karachi 325), wherein this Court held as under:

“14. It is clear from the bare reading of section 489-B, P.P.C. that in order to constitute the offence under section 489-B. P.P.C, a person must have the knowledge or have reason to believe that the currency note in caunterfeit. In the entire evidence produced question is forged or by prosecution, not a single prosecution witness has spoken a word on this aspect of the case. It has not been stated clearly by any of the prosecution witnesses whether the accused had the knowledge or had reason to believe: that the currency note used by him was forged or counterfeit. On the other hand, the accused has obviously pleaded that he did not hand over any such note to the complainant. Moreover, on the point of knowledge intentions on the part of accused, the burden was entirely upon the prosecution to prove its own case.”

In the case of Hamid Yousif v. The State reported in 2011 PCr.LJ 172 it was observed as under:-

“Accused had no knowledge nor had reason to believe that the counterfeit currency notes were in fact forged or counterfeit; and he did not intend to use the same as genuine; or that it could be used as genuine. Basic and mandatory requirements of law, in circumstances, had not been fulfilled. Prosecution had failed to meet the requirement of section 489-C. P.P.C. for sustaining a conviction and sentence for the offence. Trial Court while convicting accused had found his “mere possession” and then without caring for essentials of section 489-C, P.P.C. proceeded to pass impugned judgment, which was not sustainable. Said judgment was set aside and accused was acquitted of the charge levelled against him and he was set free.”

(Emphasis is supplied for the sake of convenience)

The prosecution, in order to establish its case against the accused/appellant, has heavily relied upon the certificate issued by Mr. Samiullah Khan, Assistant Chief Manager, Currency Management Unit, State Bank of Pakistan, which was produced by P.W. SIP Najmuddin, who investigated the case, as Ex.5-E. I am afraid, such certificate cannot be relied upon for the purpose of conviction of the accused, for the two reasons; firstly, that the alleged fake currency notes etc. were sent to the State Bank of Pakistan for verification after a considerable delay without any plausible explanation that where such currency notes etc. were kept during the intervening period, and secondly, that the person who issued such certificate was not got examined by the prosecution before the trial Court.

The Investigating Officer, P.W.3. SIP Najmuddin in his evidence deposed that on 05.08.2019 he received FIR No.157/2019 along with mashirnama of arrest and recovery including case property in sealed condition for the purpose of conducting investigation. He further deposed that he sent currency notes allegedly recovered from the possession of accused to State Bank of Pakistan for verification through letter Ex.5-C dated 08.08.2019 which has been shown to have received in the Office of Chief Manager, State Bank of Pakistan on 16.08.2019 and the certificate Ex.5-E was issued on 19.08.2019. In the circumstances, if counted from the date of receipt of the letter sent by I.O. for verification, it seems that there is delay of about eleven (11) days in sending the alleged fake currency notes to the State Bank. For the sake of arguments, if the period is counted even from the date of the letter through which such currency notes etc. were sent to State Bank, even then there is unexplained delay of at least three days. In his evidence, the I.O. has not said a single word that during the intervening period the alleged recovered currency notes and prize bonds were kept in safe custody. In the circumstances, the certificate of State Bank has lost its evidentiary value. In this connection, reference may be made to the case of Mohammad Saleem v. The State reported in 1995 PCr.LJ 662 [Lahore), wherein it was held:

“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 dispatch to the State Bank of Pakistan for its verification as there is a gap of more than one month in the said dispatch. 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.Ws. who would have identified the same. There is no other evidence 10 connect the appellant with the crime alleged against him.”

In another case reported as Azmat Khan v. The State (2000 PCr.LJ 1461 [Karachi] it was held as under:

“The perusal of evidence adduced by the prosecution shows that appellant was found in possession of counterfeit currency notes. The essential ingredients for constituting an offence under section 489-C, P.P.C. are that prosecution has to prove that the currency notes recovered from the possession of appellant were forged or counterfeit and that he intended to use them as genuine or that they might be used as genuine. It is well-settled that prosecution is not absolved from proving its case beyond any shadow of doubt, even if burden is shifted upon the accused The police official is not expert to give opinion with regard to the genuineness or otherwise of any currency notes. It is the only expert who can say or give any opinion in that context. In the case in hand the Deputy Currency Officer of State Bank Pakistan who issued certificate was not examined by the prosecution to substantiate the charge. The certificate issued by him was not immuned under section 510, Cr.P.C. Mere possession of forged currency notes is no offence. Thus, the prosecution miserably failed to prove the charge against the appellant.”

(Emphasis is supplied for the sake of convenience)

Yet there is another lacuna/discrepancy which is also fatal to the prosecution case. Admittedly, description/denomination of currency notes and that of prize bonds were not mentioned in the charge, besides the same were also not confronted to the appellant while recording his statement under section 342, Cr.P.C. which also puts dent in the prosecution case. In this respect, reference may be made to a decision given in the case of Peeral v. The State reported in 2020 PCr.LJ 1147 [Sindh (Hyderabad Bench)] wherein, while relying upon the four cases decided by Honourable Supreme Court of Pakistan, it was held as under:

“19. It is well settled principle of law that the piece of evidence which is not put to the accused in statement under section 342, Cr.P.C. that cannot be used against him. In case of Nusrat Ali Shar and others v. The State in Cr. Appeals Nos. 24-K, 25-K and 26-K of 2018, Honourable Supreme Court of Pakistan has held that on this ground that a piece of evidence which is not put to the accused under section 342, Cr.P.C. the case cannot be remanded to the trial court but to decide on merits. The Honourable Supreme Court has held in the case of Imtiaz alias, Taj v. The State 2018 SCMR 344 (2) Qadan and others v. The State 2017 SCMR 148 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 that a piece of evidence or a circumstance not put to an accused person at the time of recording his statement under section 342, Cr.P.C. could not be considered against him.”

(Emphasis is supplied for the sake of convenience)

There also seems to be violation of the provision of section 103, Cr.P.C. as all the witnesses/mashirs are police officials and no independent person of the locality from where the accused was allegedly arrested and fake currency notes etc. were recovered from the accused, has been associated as witness/mashir. The complainant ASI Allah Warayo in his cross-examination admitted, “It is correct to suggest that the place of incident is thickly populated area…..” He further admitted. “I did not make any effort to procure the private person as witness….” Although, he added, “but nobody was available at that time”, and, “as nobody was available there”, but in the same breath he further admitted, “We checked 10/15 motorcycles and 3/4 Cars within 15 minutes.” There is nothing on the record to show as to whether he asked any person driving motorcycle or car plying on the road near the place of incident to act as mashir and that despite this, nobody was prepared to become witness/mashir. On the other hand, he himself admitted, as quoted above, that he did not make any effort to procure the private person as witness.

Likewise, P.W. Nawaz Ali, who acted as mashir, also admitted in his cross-examination, “It is correct to suggest that the place of incident is thickly populated area. We checked 5/7 motorcycles within 15 minutes.” Besides, he contradicted/belied the admission made by complainant ASI Allah Warayo to the effect that he did not make any effort to procure the private person as witness by admitting in his cross-examination, “Complainant tried to procure witness from the E public but they refused.” Now question arises as to whose statement is taken to be true and correct. If the statement of the complainant is said to be correct, then apparently there is lack of any explanation given by him as to why he did not make any effort when admittedly motorcycles and cars were plying on the road near the place of incident and the place of incident was also admittedly a thickly populated area. Again, on the other hand, if the statement of mashir P.W. Nawaz Ali is considered to be true, then question arises as to whether in such an eventuality, complainant Allah Warrayo issued any notice and took any steps against the person(s) who refused to become witness/mashir, as provided under the relevant law. There is no such indication available on the record. In such circumstances, as stated above, there is clear violation of the provisions of section 103, Cr.P.C.

Needless to emphasize that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted, so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception.

In the case reported as State v. Bashir and others (PLD 1997 SC 408) Honourable Supreme Court held as under:

“As regards above second submission of Mr. M. M Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public.”

Yet in another case reported as Yameen Kumhar v. The State (PLD 1990 Karachi 275) this Court after discussing various case-laws on this point held as under:

“A perusal of the aforestated authorities and a catena of judgments of various High Courts which we have not quoted here clearly lay down that section 103, Cr.P.C. is to be applied to recovery, search and arrest made during investigation of a crime. It has been termed as mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and. reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses. Such witnesses should be of the locality if the circumstances of the case permit. Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against ‘chicanery’ and ‘concoction’, to minimise manipulation and false implication. It is for these reasons that there is a consensus in the Superior. Courts that compliance with section 103 should not be bypassed nor that its applicability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practised during investigation in crimes for so long and with such regularity and force that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law.

The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a. playground, field or garden from where recovery can be made for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VII of Cr.P.C. it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal, jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability.”

In view of above, the alleged recovery of fake currency notes and prize bonds etc. has lost its evidentiary value and could not be made basis for the conviction of the accused/appellant.

Needless to emphasize that it is a well settled principle of law that prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:

“In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution.”

In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:

“The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case……. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise.”

The accumulative effect of the above said admissions/ contradictions as well as infirmities/legal flaws in the prosecution case is that serious dents have been put and doubts created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. Needless to emphasize the well settled principle of law that the accused is entitled to be extended well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:-

“The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

For the foregoing reasons, by short order dated 21.05.2021 instant appeal was allowed and the impugned Judgment dated 03.11.2020 handed down by VIIIth Additional Sessions Judge, Hyderabad in Sessions Case No.513 of 2019 (re: The State v. Mohammad Umar) being outcome of FIR No.157/2019 under section 489-B, P.P.C., registered at P.S. Qasimabad, was set aside. Consequently, the appellant Mohammad Umar was acquitted from the charge(s) framed against him. He, being in custody, was ordered to be released forthwith, if not required by the jail authorities in any other criminal case.

Above are the reasons for said short order.

Appeal allowed