2011 P Cr (PLP)

IQBAL HAMEED-UR-REHMAN, C.J.

This is an appeal filed by Ghulam Fareed, son of Muhammad Khan under section 417(2-A), Cr.P.C. challenging the acquittal of respondent No.1-Muhammad Din Rana in case F.I.R. No.372 of 2008 dated 19-9-2008 under section 406, P.P.C. registered with Police Station Industrial Area, Islamabad for committing criminal breach of trust. Respondent No.1 was tried by learned Judicial Magistrate Section 30, Islamabad who by his judgment dated 25-4-2011, acquitted him on the ground that the ingredient of the offence under section 405, P.P.C. for criminal breach of trust is not proved. Feeling aggrieved by the impugned judgment, the appellant has filed the instant appeal.

2. The prosecution case as it unraveled in the F.I.R. registered on the basis of application filed by the complainant/appellant, was that the complainant is the resident of Bahtar Moza, Tehsil Fateh Jang, District, Attock. He along with ten persons have made investment with the accused (respondent No.1) who is a clerk in Allama Iqbal Open University, Islamabad. As per agreement made between the complainant and the accused, complainant has been receiving profit on monthly basis for some times but subsequently, he refused to make payment of the profit. That it was agreed between the parties that the complainant and other investors can receive their amount with prior notice of three months. That accused has been paying profit for one and a half year but subsequently, in May, 2007 he refused to make payment of the profit. That he has also not returned the principal amount despite repeated demands, so he has committed criminal breach of trust.

3. After discreet investigation, the accused was challaned and put to trial, during course of which he had earned acquittal through the impugned judgment.

4. Learned counsel for the appellant has contended that the learned trial Court has erred in passing acquittal order although sufficient oral as well as documentary evidence is available on record attracting offence under section 406, P.P.C.; that the amount was given to respondent No.1 as a trust who misappropriated the said amount; that receiving of amount by respondent No.1 and execution of several agreements in this regard are admitted on which signatures and thumb-impressions of the parties are there, hence ingredients of section 405, P.P.C. are very much proved; that the reasonings given in the impugned judgment are very perverse and do not bear from record; that the impugned judgment is against law and facts and based upon surmises and conjectures.

5. I have heard the learned counsel for the appellant and have also gone through the impugned judgment as well as documents appended with this appeal.

6. The F.I.R. in the case was got lodged by the appellant/ complainant against respondent No.1 for the commission of criminal breach of trust. From the perusal of material available on file it reveals that the complainant got recorded his statement as P.W.1 wherein he categorically admitted that he has invested the amount in the business of currency with the accused/respondent No.1 and the amount was not given as a trust. It further reveals that P.W.2 and P.W.3 have deposed in the same line as admitted by the appellant regarding giving of money to respondent No.1/accused for the purpose of investment and profit. Furthermore, the F.I.R. also shows that no money has been given by the complainant and other persons as a trust to the accused/respondent No.1. Keeping in view the above admissions and the law governing the subject, it is suffice to say that the offence of criminal breach of trust is not made out against the accused/respondent No.1. The learned trial Court has rightly observed that the amount was not given to the accused/respondent No.1 as a trust rather the same was given for investment and profit so there is no question of any criminal breach of trust. Moreover, there was a contractual deal between the complainant and respondent No.1 accused pertaining to which agreement was reduced into writing. The remedy available to the complainant was to resort the Civil Court for getting his grievance redressed.

7. Moreover, the learned trial Court had given due weight and consideration to the evidence on record and the verdict of acquittal cannot be interfered with unless there is strong evidence to establish the guilt. In order to disturb an order of acquittal, it must be shown that the judgment was either perverse or was manifestly wrong with the result that miscarriage of justice has taken place. The findings of the learned trial Court are well justified which do not call for interference. In order to dispense with safe administration of justice, the Court has to watch the interest of both the sides and not only the prosecution side alone. The impugned judgment does not appear to be perverse or arbitrary or based on non-appreciation or improper appreciation of evidence.

8. In the light of what has been discussed above, I have no reason to disagree with the conclusion arrived at by the learned trial Court. Consequently, the appeal being without any merit is dismissed in limine. H.B.T./39/Isl. Appeal dismissed.