P L D 1953 Sind 25 (PLP)

AGHA, J.‑In this case, Khwaja Hyder Bakhsh Jafri was tried under sections 417, 392, 397 and 302, P. P. C. and 19 (E), Arms Act. The prosecution case was that the accused Hyder Bakhsh falsely gave out to 2 persons, namely deceased Usman and Hashim Seth that he would sell some ornaments to them at a cheap rate, and thereby induced them to bring sufficient money with themselves. On this deceased Usman and Hashim secured one lac of rupees, and carrying the money with themselves, met accused Hyder Bakhsh, who took them in a taxi car, and on the way shot both of them dead with a revolver and took away their money. The case was tried with the aid of jury, who unanimously found the accused not guilty of all the charges, and I had, therefore, to acquit him. The evidence led by the prosecu tion showed that deceased Usman and Hashim were robbed of one lac of rupees on 19th December 1949. The accused Hyder Bakhsh that night left Karachi for Hyderabad, where he was arrested by the police. From his personal search Rs. 19,903‑3‑0 were secured. He was said to have been carrying a fruit basket with himself at that time. In the fruit basket there was a small leather case, from which the police recovered Rs. 80,

000. All this money, found either on the person of accused Hyder Bakhsh or in the fruit basket, was in 100 rupees currency notes. In his statement made before me in this case, the accused has claimed Rs. 19,900‑0‑0 and odd found on his person. As regards Rs. 80,000 said to have been found from the fruit basket carried by him, he has said that the fruit basket was his, but it did not contain the leather case from which Rs. 80,000 had been recovered, though he says that this leather case containing this money was in one of the station rooms where he was taken immediately after the train reached Hyderabad. The only question to be decided is, whether the money admittedly found on his person is to be given to him or the heirs of the two deceased persons. It is correct that, by this order the question of title is not to be decided, and the only thing that has to be decided is, who is prima facie entitled to the possession of that money. The evidence led by the prosecution with respect to the money did not show the numbers of these 100 rupees currency notes nor were any other marks on these notes by which they could be said to be the same which deceased Usman and Hashim were carrying with themselves. There is definite evidence that they had withdrawn from banks one lac of rupees in all, and the total money found on the person of accused Hyder Bakhsh falls short of this amount by Rs. 96‑13‑

0. The other factor to be considered is whether the accused Hyder Bakhsh could honestly possess Rs. 19,900 and odd, or he would normally carry so much amount on his person if he had honestly come by it. In his statement in the lower Court, he did not claim this money, and had said that he did not want to make a statement at that stage. In this Court, as said above, he claimed the money found on his person. There is no indication whatsoever in the evidence of this case that the accused Hyder Bakhsh was a man of means. On the contrary, there are indications to show that he could not possess so much property honestly. The main fact on this point is that, in his first trial as well as the present trial in the Sessions Court, be showed his inability to engage an advocate at his own cost for his defence, and therefore an advocate at Government cost was appointed to defend him. I might also mention here trial in my summing‑up, I made it clear to tae gentlemen of the ju, that, in my opinion, the accused could not honestly possess this money, and that the entire money, including the money found on his person, was the money which had been carried by deceased Hashim and Usman and with respect to which robbery had been committed. In' making an order under section 517, Cr. P. C. the Judge has al discretion with respect to disposal of property, and he cant 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. In my opinion, this is a case in which the entire money appears to have been the money which was robbed from deceased Usman and Hashim and prima faice a the heirs of these two deceased persons are entitled to its possession; the accused Hyder Bakhsh may get his title decided in a proper Court. I, therefore, order that this entire money, including Rs. 19,903‑3‑0 should be given to the heirs of deceased Usman and Hashim. I wish to add that Mr. Abdul Aziz has appeared in this matter for certain persons claiming to be the hers of deceased Usman and Hashim. I have, however, in this order not to go into the question whether they are the heirs of the two deceased persons or not, and whether they are the only heirs. This order, therefore, should not be construed as holding these persons to be the heirs or the only heirs of the two deceased persons Hashim and Usman. A. H. Order accordingly.