1. SAEEDUZZAMAN SIDDIQUI, J.-The respondent Lois Kowach was sent up by S. H. O., Railway Police Station, Larkana, before the Extra-Joint Civil Judge & F. C. M., Larkana to stand trial under section 379, P. P. C. The trial Court after recording evidence acquitted the respondent on 28th of September, 1978. Simultaneously an order was passed under section 517 of the Cr. P. C. Directing that the cash amount of Rs. 25,230 and -- sterlings 555 and the brief case of brown colour containing other articles be returned to the respondent.
2. The State has come in appeal against the acquittal of the respondent.
3. We have heard Mr. Ibrahim Memon, the learned Addl. Advocate. General for the State and Mr. Sulaiman Qureshi, the learned counsel for the respondent in this appeal.
4. Mr. Memon the learned Additional Advocate-General contended before us that the orders of acquittal recorded by the trial Court cannot be sustained in law inasmuch as the self- consideration which weighed with the trial Court in acquitting the respondent was the statement of the complainant made before the Court. Mr. Memon contended that besides the statement of the complainant there was at least one independent witness, namely, Nasrullah, whose statement proved the offence under section 379, P. P. C. Committed by the respondent beyond any shadow of doubt. The learned counsel further contended that the trial Court while acquitting the respondent did not advert properly to the statement of this witness.
5. We have ourselves seen the statement of the witness Nasrullah who was examined before the trial Court as Exh. No. 4. No doubt this witness has stated that the respondent on the date of incident at about 3'O clock in the morning alighted from the train, Bolan Mail, had, come to the waiting room where the witness was on duty. It is also stated in the evidence of this witness that the respondent while entering the waiting room was carrying a black leather bag similar to the one which was produced in the Court. This witness had also stated that he served the tea to the respondent while he was sitting in the waiting room and that after the respondent had left the waiting room, the black leather bag was detected by A.S.I. Ziaullah in the window of the bath room of the said waiting room. However, in cross-examination this witness admitted before the Court that the complainant's brother Noor Mohammad and his two children came to the waiting room when the respondent was there and took search of the respondent but nothing was recovered. It is also stated by this witness that before conducting the said search by the afore-- said persons, one Advocate and two other persons came there in the waiting room. It is to be noticed that this statement of witness Nasrullah in the cross-examination was not admitted by the complainant and Noor Mohammad who had taken search of tae respondent was not examined in the case. In these circumstances it is difficult to see how the statement of this witness could improve upon the case of the prosecution. The trial Court considered the evidence of the complainant in detail as well as other evidence produced in the Court in support of the prosecution case including the evidence of P. W. Nasrullah. The evidence of Nasrullah was not accepted by the trial Court as there was no corroboration to the testimony of this witness on material point and non-examination of Noor Mohammad who had taken search of the respondent was also considered as a circumstance making the evidence of Nasrullah less reliable--- The conclusion reached by the trial Court cannot be described as perverse or foolish. In our view while reappraising the evidence in a criminal acquittal appeal the High Court will normally not interfere with the conclusions reached by the trial Court, on the appreciation of the evidence unless such appreciation of evidence was perverse, foolish or based upon extraneous consideration. On reading the acquittal order we have not been able to discover any such thing in the order so as to pursuade us to interfere with the order passed by the trial Court. Mr. Memon, was also unable to show us anything in the order of the trial Court except pointing out the evidence of Nasrullah, but as pointed out by us earlier even this statement was not such which could call for reversal of the acquittal order into one of conviction. There is, however, another aspect of the case which in our opinion requires reconsideration. The trial Court while passing the order under section 517, Cr. P. C. Has ordered for return of the cash amount of Pak.
6. Rs. 25,213 and pound sterling 555 alongwith brief case of brown colour and other articles contained therein as mentioned in Exh. 5-A Mashirnama, to the respondent. The order, does not state the reason for handing over the disputed Pakistani currency of Rs. 25,230 and -- sterling 555 to respondent which was also claimed by the complainant Jamil Ahmad as belonging to him. It, appears that the trial Court was perhaps pursuaded to make this order firstly for the reason it was recovered from the possession of respondent and secondly the trial Court had held that the statement made by the respondent before the S. H. O. Namely, statement Exh. 8-D way inadmissible in evidence under section 25 of the Evidence Act. We may state here that just because the disputed currency was recovered from the person of the respondent was by itself not a sufficient circumstance in this case to order for its return to respondent. The version given by respondent in Exh. 8-D, creates serious doubt if the money at all belongs to him. We may also point out that section 25 of the Evidence Act makes only such statements inadmissible which are in the nature of a confession. In fact it is only the confession made to a Police Officer while in custody that they are rendered inadmissible under section 24 read with section 26 of the Evidence Act. We have looked into the statement of the respondent contained in Exh. 8-D. This statement of the respondent contained in Exh. 8-D. This statement cannot be described as a confession. On the contrary it is in the nature of justification offered by respondent for possession of the articles and the currency recovered from hint. While disposing of the properly under section 517, in our view, the trial Court should have considered this statement. In the statement Exit. 8-D, which was given by the respondent to Investigating Officer before the brief-case was opened, he has described, the cash contained in his brief-case amounting to Rs. 51,350 or Rs. 55.500 Pakistani currency and -- sterling 564; while admittedly the actual amount recovered from the brief-case of respondent was Rs. 25,230 Pakistani currency and -- sterling 555. Again the denomination of Pakistani Notes and the -- sterling given by the respondent were substantially deferent from those recovered from his brief-case. It is indeed significant that the complainant had claimed in the F. I. R. That the Pakistani currency and sterling pound stolen from his possession were Rs. 46,000 and -- 555 respectively, which tallies with the amount of -- sterling recovered from the possession of respondent. The F. I. R.
7. Was admittedly lodged before the respondent was arrested and the currency was recovered from the brief-case of the respondent. It is also not without significance that in the written statement Exh. 8-D given by the respondent before opening of his brief-case, he had disclosed that his marriage had ended in a divorce 5 years ago, and that the pound sterling, which he was carrying, was earned by him through wrestling abroad but he had not declared the same to the State Bank of Pakistan. However, in his statement under section 342, Cr. P. C. The respondent stated in Court that the pounds sterling were received by him as gift from his were from America alongwith the X- Max card on the eve of Christmas. There appears to be a serious contest with regard to the ownership of the Pakistani currency and the pound sterling notes recovered from possession of the respondent and in view of the position discussed above, in our view, the proper order in. This regard would be to keep the Pakistani currency amounting to Rs. 25,230 and -- sterling 555 in the custody of Court until such time one of the parties claiming it, succeeds in establishing his right and title to it in a proper civil Court having jurisdiction in the matter.
8. The result is that the appeal is dismissed but the order of trial Court regarding return of property to respondent shall stand modified to the extent indicated above. The respondent is on bail and his bail bond is cancelled.