KHUDA BAKSH MARRI, J.--This revision application under section 435/439/561-A, Cr. P. C. Is directed against the judgment of Mr. Abdul Qadeer, Additional Sessions Judge, Karachi, dated 19th December 1968 whereby lie set aside the order of the S. I). M. Harbour, Karachi dated 6-4-1968 and directed that the disputed amount of Rs. 4,883.31 instead of being handed over to respondent Sardar shall remain in custody of the trial Court till the respective owners establish their claim in civil Court. Surprisingly the revision application does trot challenge the order of the learned S. D. M., Harbour, Karachi, according to which the disputed amount was to be given in possession of appellant Sardar and not the present applicant.
Briefly the facts of this case are that on 8-12-1965 complainant Mohammad Hussain (now deceased) while returning along with his friend Muhammad Hanif in a rickshaw from a clank after encashment of a cheque for Rs.4,883.31, the tic-nomination of the currency notes were given in the report, when they reached Sher Shah .Colony, they were confronted allegedly by one Jawed Aqil now acquitted, be was holding a pistol in his hand and threatened to hand over the cash. On refusal of the complainant, he fired pistol shots in the air as a result the complainant got frightened, he threw away the bundle of notes, which was picked up by Jawed Aqil and he ran away. Cries were raised by the complainant and it being morning time, many people gathered and Jawed Aqil was caught by Jangu and others but the money was not recovered from him at that time. According to the prosecution the money was recovered from the present applicant Jalal Khan from underneath pillow of his bed in Sher Shah Colony in presence of mashirs Nauroze and Benaras. The prosecution in this case examined 19 witnesses, the learned S. D. M. After discussing the prosecution evidence, however, acquitted both the accused Javed and Jalal Khan and at the same time he passed an order under section 517, Cr. P. C. For disposal of the money to be given to Sardar on production of succession certificate, as his mother complainant Muhammad Hussain had died before the lose of the trial.
3. Against the order of S. D. M. An application under section 520, Cr. P. C. Was moved by the applicant for restoring the currency notes to him as he claimed the ownership of the laid amount, this application was heard and the impugned order was passed by the Additional Sessions Judge, Karachi.
4. I have heard Mr. A. K. Lakhan, Advocate for the applicant, Mr. A. A. Mohammadally, Advocate for the State and Mr. Ch. Nazir Ahmad, Advocate for the respondent Sardar. Counsel for the applicant mainly argued that as the money admittedly was in possession of the applicant and the police has recovered the same from his house, on his being acquitted, under the law, only he is entitled to the possession of the same and not the respondent Sardar as ordered by the S. D. M., nor, it should he kept in custody of the Court as ordered by the Additional. Sessions Judge. It was argued that both the witnesses; of recovery have fully supported that the amount was recovered from the applicant's possession and also that no other witness has connected the applicant with the offence. He attacked the judgment of the Court below on the ground that it erred to hold that since the amount of the same denomination was taken from the applicant, it requires civil Court's decision and even on evidence it was urged that it is only the applicant who is entitled to possession of the amount in dispute. On the other hand counsel for the respondent Sardar, submitted that there is sufficient evidence on record to show that in fact the respondent's brother Muhammad Hussain the complainant, had encashed the cheque of the amount in dispute, which was forcibly snatched froze him in broad-day-light by Jawed Aqil by use of fire-arm. This very amount it was stated was later on however, recovered by the police from underneath the pillow of applicant on the same day; therefore, the amount having been snatched from the complainant may be restored to him.
5. In view of the contest between the parties with regard to the entitlement of the amount in dispute it becomes necessary for me to go briefly into the evidence on record to reach to a definite conclusion in this regard. F. I. R. Was lodged by Muhammad Hussain on 28-12-1965 at 13 hours at S. I. T. E. Police Station, Karachi, wherein he showed that the occurrence has taken place at 11-45 hours on the same day at Sher Shah opposite Bombay Hotel at a distance of 3 miles towards West of Beat No. 10, wherein he stated that he is sub-contractor of Gandhara Industries and at 11 a.m. One Ahmed Din gave him a bearer cheque of the amount in dispute and he went at 11 a.m. To encash the same from Habib Bank, Napier Road Branch, Karachi, along with his friend Muhammad Hanif, he got the cheque cashed and obtained from the bank amount consisting of 30 notes of one hundred-rupee each, 100 notes of ten-rupee each, 160 notes of five-rupee each, 83 notes of one- rupee each and paisas 31 as well. He tied this amount in a `katha' coloured handkerchief and kept in his hand. He and his friend Muhammad Hanif picked up a rickshaw and returned towards his house in Sher Shah. At 11-45 a.m. When they stopped the rickshaw near the Bombay Hotel another rickshaw stopped near their rickshaw from which accused Jawed Aqil gut down, pointed his pistol at him and demanded the money but he refused, on this he fired a shot from the pistol in the air.
Again he refused to give the money, a second shot was fired, he then threw the money tied up in handkerchief on the road where 3-4 other persons were also standing. While in process of firing, the accused picked up the money and started running towards Sher Shah. He was followed by the complainant, Hanif and other people and ultimately caught hold of him at a distance by Jangu Khan, Zar Din, Yasin, Lai Muhammad and one Police Constable by name Jalaldin belonging to Excise Department and other persons, helped and arrested Jawed Aqil. In the meanwhile the complainant also reached the spot and on search money was not found with the accused. The pistol was however, snatched from the accused, a report was immediately lodged. The complainant was put to test by a Magistrate who correctly recognised the handkerchief Article P-I.
He is very sure in his statement that it was the accused who had picked up the money before running away. He also stated that when he went to the bank on the day of incident, before encashing the cheque he saw accused Javed Aqil in the bank. This witness is fully supported by his companion P. W. 2 Muhammad Hanif in all material details with regard to the incident.
This witness however denied the suggestion that Jawed Aqil had remonstrated with him for being on friendly terms with the complainant Muhammad Hussain, who indulged in jokes with him. P. W. 3 Jangoo Khan, Excise Constable supports the story of the complainant and states that while Jawed Aqil was a running on the day of incident and firing in the air, he was surrounded and caught by him and other people and h-- revolver was snatched from his hand. He further states that 5-7 minute after the arrest of Jawed Aqil, complainant Muhammad Hussain also came to the S. I. T. E.
Police Station. He complained about snatching away of about Rs. 5,000.00 in cash from him by the accused. The revolver was found with an empty cartridge inside. Next P. W. 4 Mohammad Yasin, Excise Constable is also a witness to the arrest and firing pistol shots by Jawed Aqil in the air and his being arrested by them and producing before the police along with the revolver. The time given by him is 12-50 when they, reached the police station. P. W. 5 Mohammad Iqbal, Post Office Clerk also is a witness who witnessed the scene and testified the factum of firing of pistol by accused Javed Aqil. This man however, states that he has not heard from Muhammad Hussain that he has lost about Rs. 5,000 but he at the same time admitted that he was not summoned by the Court for attendance and he denied that he has been won over by the other side. He knew Muhammad Hussain and Muhammad Hanif. Then we have the statement of F'. W. Faqir Muhammad a Mochi. He supports the story of complainant Muhammad Hussain and also that soon after the incident he noticed Muhammad Hussain complaining of his having been deprived of Rs. 5.000. He saw the bundle thrown away by Mohammed Hussain in a handkerchief of brownish colour. P. W. 10 Ghulam Hyder a witness of the scene states that Muhammad Hussain did raise alarm to the effect that accused has taken away Rs. 5,000 belonging to him who was followed and later on arrested. He is very sure that he noticed the throwing away of the handkerchief by Muhammad Hussain who told him later on that handkerchief contained the money and the handkerchief was picked up by the accused, who took to his heels. P. W. 12 Abdul Majid Manager of Habib Bank Ltd., Napier Road Branch, Karachi stated that on 27-12-1965 cheque Exh. 12-A was presented: to the Bank but it was returned unpaid because it was drawn against funds expected and the slip Exh. 2-A was issued by the Bank that the same to be presented on 28-12-1965 which was paid by the Bank on the same day, and the denomination of the notes were noted on back of the cheque endorsed Exh. 12-B although he admits that the endorsement were not of his hand. Exh. 13-A is the Mashirnama regarding pointation and seizure of theft property. This is signed by mashirs Nauroz Khan and Banares. Money was recovered under the supervision of Mukhtar Ahmed S. H. O. According to this Mashirnama applicant Jalal Khan accused led police and mashirs to a locked-up pucca house towards North side at a distance of 80 paces from place of arrest of Jawed Aqil. He opened the lock of the house with a key and produced a bundle in katha-coloured handkerchief lying under the pillow of his cot saying that he had picked up the bundle from the place of arrest, which had at that time fallen from the hand of ' he co-accused and he had hidden the same. The bundle was opened and the money containing the above said denomination notes was found including the change of 31 paisas. It may be noted however, that mashirs Banaras and Nauroz when examined before the Court have resiled from the state--ments in the mashirnamas and they were declared hostile by the prosecution. In his statement Banaras P. W. 14 stated that he was called at 6 p.m. At police station and shown accused Jawed Aqil present there with the handkerchief in Court. Then he stated that t0he money was recovered from him. He denied that the money was recovered from the house of applicant Jalal Khan and that in order to save his skin he has given false statement. P.
W. 13 Nauroz the other mashir also resiled from this previous stand as contained in the mashirnama and he was consequently declared hostile. He stated in examination-in-chief that he met Jalal only at the police station where he had Rs. 4,000 to Rs. 5,000 with him given to him by the police at the police station. He admits however, that he was a witness to the recovery memo. Exh.
13-A but it was not according to him read over to him at the time of preparation and he denies that neither Jalal took the police to his house nor he produced the money from his house under his pillow.
6. S. H. O. Mukhtar Ahmad P. W. 16 stated that he recorded the F.
1. R. At the instance of Muhammad Hussain, seized pistol produced by Constable Jalaluddin and empty cartridge and prepared the necessary mashirnuma, also arrested Jawed Aqil. He went to the scene of offence, prepared necessary mashirnama. On 29-12-1965, he arrested co-accused Jalal and recovered amount; from him as per mashirnama Exh. 13-A containing the money recovered from the pillow of Jalal on his pointation. He got the handkerchief in question identified by the complainant before the S. D. M. In cross-examination he states that besides key Article 4 Rs.200 in cash were recovered from the possession of accused Jalal. He did not include this money in the recovery memo. Accused Jalal had fallen down when chased by the police before he was brought . To the police station. He denied that he knew Jalal Khan before the date of incident and also repelled the suggestion in cross-examination that he has held Jalal Khan because he did not obey order of one Saeed allegedly relative of the present witness. He also showed his negligence with regard to Jalal Khan being a landlord and well -to do person. He testified Banaras and Nauroz as witnesses of mashirnama Exh. 13-A. He denied that he got the mashirnama signed after the event.
7. It may be mentioned that accused Jawed Aqil in his statement under section 342, Cr. P. C.
Although denied the snatching away of the money in dispute yet admits that- "On 28-12-1965 at about 11 a.m. I was coming froth my house to take my pistol for repairs to deliver it to Mr. Pracha a Petrol Dealer of S. 1. T. E. Area to get repaired through him from Arms and Ammunition dealer Dossal who was known to Mr. Pracha. As I reached the vicinity of Petrol Pump in Sher Shah area I noticed one rickshaw at my rear with two passengers on him, one of Muhammad Hanif was known to me since my school days. He nodded with me and I called out to him from rickshaw, when both of us got (Air rickshaws stopped at road side and got engaged in conversation, I had asked him reason is for his not giving up going about with undesirable persons to which his other companion Mohammad Hussain com--plainant got annoyed at me. I told him that I had not addressed him directly, and that he had no reason to get retaliated, when same Mohammad Hussain started beating me up with fist blows inflicting injuries on forehead and in meantime two to the other persons appeared at the scene, who started supporting complainant, and whom I had identified later on in -curt appearing on behalf of prosecution. All of them started maltreating me, when in self-defence I took out my pistol and in order to scare them off shot in the air. I ran up to take cover, and in meantime one taxi-cab appeared from rear, and its passengers overpowered me, who were later on, revealed as officials from Excise Deptt and who seized pistol Art. 3 from my hand and hauled me up to police station. Afterward I learnt that some money has been foisted on me at instance of the complainant, after lapse of 12 cases of highway robbery. I admit that I had picked up quarrel with complainant party for reasons already given by me above but prosecution in order to bolster had alleged money, which was never in my possession nor there was any contention with me on that point. I am innocent. Since Muhammad Hanif had undesirable relations with Mohammad Hussain, therefore present case was brought up against me.
Mohammad Hussain complainant, used to supply iron material in Gandhara Industries and at his complaint lodged with managements of that industry, Police machinery was put into motion against me, and I was preset at Police Station S. I. T. E. When telephone message was received for proceedings against me."
8. Now coming to the co-accused Jalal Khan, the present applicant, he denied the allegations with regard to the recovery of money and states on questioning, that no mashir has come forward to state against him. He claims the alleged property as his property and the same was recovered from his house on search while it was not accompanied by any mashir. He was held up with this money to police station S. I. T. E. He had Rs. 200 in cash with him which was recovered from him on search but was restored later on to him. The alleged money recovered from him was collected by him out of funds on running of his own business. He claims to have landed property and when he was asked as to why the P. Ws. Deposed against him he states that none of the P. Ws. Deposed against him but on the contrary they had stated about their having been made witnesses at police station to the alleged recovery.
9. It appears to me that the learned S. D. M. Had reached to the correct conclusion that the money was recovered initially from the possession of the complainant Muhammad Hussain which was picked up later on by accused Jawed who passed it on to the appellant Jalal. There is overwhelming evidence on the part of the prosecution to show that the complainant did encash the amount in dispute from the Bank and that the incident did happen which is not denied by the main accused Jawed. There is sufficient evidence that he threw the money contained in handkerchief. It is quite possible that the applicant Jalal Khan was standing nearby, either he was in league with co-accused although the evidence does not show that but in any case his presence in the vicinity is quite probable and he therefore, decamped with the handkerchief. Most probably the robbery was pre-planned by the two acquitted accused persons and thus the complainant was deprived of his legitimate money. The very resiling of the mashirs Nauroz and Banaras who admittedly were mashirs of the recovery goes to show that these witnesses were won over by, the defence and told sheer pack of lies before the trial Court that the money was not recovered from Jalal's house. In this regard I do rely on the statement of S. H. 0. P. W. Mukhtar Ahmed who investigated the case and recovered the money in presence of mushirs from Jalal Khan on his own pointation. The very statement of Jalal Khan made under section 342, Cr. P. C. Is very half-hearted one. As the money was recovered from him he did attempt to show that the money belongs to him, this was simply done to save his skin from being prosecuted as co-accused If the Police had any intention to falsely implicate Jalal Khan they could have easily ignore the recovery of Rs. 200 from the person- of Jalal Khan but that money was entered into the separate mashirnama which was according to Jalal Khan later on restored to him. The were acquittal of the accused persons in my opinion does not entitle Jalal Khan necessarily to the fact that the disputed money either, belonged to him or was recovered froth his possession as his own or otherwise that money is in no way connected with the alleged offence.
10. It was urged at the time of argument by counsel for the applicant that it is only the applicant who has filed the revision application first before the Additional Sessions Judge, Karachi and secondly before this Court, this goes to show according to counsel that the applicant is the real owner of the money which was recovered from him but I am not impressed by this argument just because no revision was filed on behalf of the complainant, first does not by itself disentitle him from his legal right, however no application could be filed for the reasons that the first order of the S. D. M. Was passed in favour of the complainant. Secondly the complainant undeniably had expired before the final order and his brother the present respondent No. 2 may have waited for present applicant to move the civil Court, but that was not done. Instead the applicant has come against that order before this Court in revision. It is well settled principle of equity that justice is not only to be done but it must be seen to have been done.
11. I therefore am of the opinion that in view of the overwhelming evidence that initially the money in dispute was taken from the possession of the complainant Muhammad Hussain which found its way in the house of applicant Jalal Khan co-accused who later on however, was acquitted as I hay stated earlier does not entitle them td utilise somebody else property. I am supported in my view by the decision reported as Crown v. Khawaja Hyder Bakhsh Jaffri (PLD 1955 Sind 25) wherein it was held that under section 517, Cr. P. C. The Judge has a discretion with respect to disposal of property, and he can under certain circumstances order the property to be given to a person other than the one from whose possession it was found, even though that man may not have been found guilty. The other case in point is reported as Ghulam Ahmad etc. v. Azad J do K Govt. (PLD 1951 Azad J & K 6wherein it was held that: - "It is well settled principle of law that where there has been enquiry or a trial and the accused person is discharged or acquitted by the Criminal Court, that Court should ordinarily restore the property, the subject-matter of the investigation, to the person from whose custody it was taken.
Section 517, Criminal Procedure Code provides summary procedure regarding the disposal of the property and an order under this section does not decide the question of the owner--ship of the property. It simply decides a right to possession till a civil Court decides the question of the ownership of the property."
12. For the reasons given above I am of the opinion that the money in dispute in the circumstances of present case was recovered from the possession of (now deceased) complainant Muhammad Hussain and not Jalal Khan the present applicant; therefore, I uphold the order of S: D. M., Harbour dated 6-4-1968 and set aside order of the Additional Sessions Judge, Karachi dated 19-12-1968, and direct that the money be released in favour of the respondent Sardar as heir of deceased Mohammad Hussain on furnishing surety to the satisfaction of the trial Court. The applicant however, may move the civil Court if so advised. This revision application therefore, stands dismissed.
Revision not allowed.