2003 P Cr (PLP)

5. The appellant feeling aggrieved of the same has come up with, the instant appeal as said above.

6. Her learned counsel has contended that the prosecution evidence so far brought on record had sufficiently linked them up with the charge against them and so the observations of the learned trial Court that it did not do so is absolutely uncalled for an improper; that had the prosecution had provided with opportunity to bring its remaining evidence on record, these respondents could definitely be connected with the charge; and that in any case the impugned judgment is not based on sound reasons and so merits reversal or in the alternate' the case is to be remanded for recording of remaining prosecution evidence and then it's decision in accordance with law.

7. I have carefully considered his submissions and gone through the copy of the impugned judgment.

8. The prosecution till the passage of the impugned judgment had led the evidence of its three witnesses on record. Those were Ghulam Farid (P. W.1), Nazir Muhammad (P. W.2) and Mst. Irshad alias Irshad Begum (P.W.3). After their evidence, these acquitted respondents had brought on record application under section 249‑A. Cr.P.C. for their acquittal as mentioned above. The learned trial Court has considered and discussed that evidence and the question of probability of their being convicted of any offence 'in case the remaining prosecution, evidence is brought on record. It has answered such question in the negative.

9. It was rightly so as the attraction of offence under section 408, P. P. C. read with section 511, P. P. C. in the instant case against them was not possible. It was because of the fact that the entire prosecution version as contained in the F.I.R., even if may be taken as true, the same would not make out an offence of attempt as required under section 511, P.P.C. and with the same there could be no question of making out of an offence under section 408, P.P.C. against them. And so the remaining evidence of the prosecution, even if, may be brought on record, the same could not earn their conviction.

10. Thus, such observation of the learned trial Court in no way suffered from any wrong. Because the allegation therein is that Liaqat Ali (respondent No.1) had got prepared the duplicate keys of lockers anti almirah of the college and gave the same to Ghulam Farid, watchman to bring out the cheque books and other documents from the same and handed over these to him. Those keys neither were used nor anything admittedly brought out of the lockers and almirahs there. Hence the offence of: attempt to commit an offence as envisaged by section

511. P.P.C. was not there. To constitute an offence, of attempt as mentioned in that section i.e. 511, P.P.C. something con0tructive towards the accomplishment of design must, have been there.

11. In the instant case, Liaqat Ali had handed over the keys of lockers and almirah to Ghulam Farid, watchman, who did not commit any further act in that direction. So, there could only be mere such intention on their part but not an attempt to commit offence had come into being.

12. This when was the position then the respondent No.2 could also not be held liable for the offence of abetment as punishable under section 109, P.P.C. She, therefore, could also not be held guilty of the charge, even if, the remaining evidence of the prosecution had been brought on record.

13. Respondent No.1 or respondent No.2 for that matter could ultimately not be held liable for the offence under section 408, P.P.C. also. The provision of section 408, P.P.C. reads as follows:‑‑ "Criminal breach of trust by Clerk or servant.‑‑‑ Whoever, being a Clerk or servant or employed as Clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine." This provision clearly shows that respondent No.1 being Clerk or servant of the college was not entrusted with any property in his capacity as Clerk. Thus, there could not be any question of his having committed or attempted to commit criminal breach of trust in respect of such property. So, there could be no question of these two respondents being convicted of such an offence as well.

14. It may also be interesting to note that the prosecution witnesses Nos. 1 and 2 did not support the prosecution version and they were declared hostile. So, I wonder that how the prosecution alone on the evidence of Mst. Irshad alias Irshad Begum (P.W.3) could link them up with the charge against them and earn their conviction.

15. I may also mention here that even one reason, if may be recognized in law, and the same may be found cogent can furnish base for an order of Court.

16. Due to above discussed aspect alone, I am sure that there was no probability of these respondents being convicted of any offence ultimately, even if, the remaining prosecution evidence may be brought on record and what to talk of one available on record.

17. I, therefore, find that the learned trial Court was right in invoking its jurisdiction under section 249‑A, Cr.P.C. in acquitting them of the charge. The impugned judgment, therefore, is neither perverse nor arbitrary. The instant appeal seems to be without any substance and the same is dismissed summarily as envisaged by section 421, Cr.P.C. H.B.T./H‑153/L.????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.