2020 PLP 2014 (MLD)

RAJA SHAHID MEHMOOD ABBASI, J.

Through this appeal under section 417(2-A) Cr.P.C., the appellant has challenged the vires of judgment dated 18.09.2018 passed by the learned Magistrate Ist Class Rawalpindi, through which he acquitted respondent No.1 in case F.I.R. No.237 dated 05.05.2010 under section 406 P.P.C. registered at Police Station Saddar Beroni Rawalpindi.

2. Briefly the prosecution story narrated by complainant in the FIR is that the complainant entered into an oral agreement with Saeed Azam respondent No.1, in the year 2006 for land measuring 319 kanals 03 marlas from Mouza Sood and Bodial Tehsil and District Rawalpindi and an amount of Rs.1,58,90,000/- was paid to him but he transferred only 110 kanals from said Mauza @ Rs.53,000/- per kanal total valuing 58,90,000/-. Later on he entered into agreement dated 25.07.2009 to return remaining amount of Rs.1,10,00,000/- in three installments, however, he failed to return said amount and misappropriated the same.

3. After registration of FIR investigation was conducted and on completion of investigation the respondent was sent up to face trial. Learned trial court after observing codal formalities, framed the charge against the accused to which they pleaded not guilty and claimed trial. The prosecution in order to prove the charge produced its evidence. After evaluating the evidence, learned trial court acquitted the accused. Hence this appeal.

4. Learned counsel for the appellant contends that the impugned order is patently illegal; that the learned trial court has erred in law while acquitting the respondent No.1; that there was ample evidence available on the record to connect the accused/respondent with the commission of offence but the learned trial court acquitted the respondent without assigning any convincing and cogent reason; that judgment of the learned trial court is not based on sound reasoning and the reasons advanced for acquittal of respondent are artificial and perverse and cannot be allowed to remain intact.

5. Having heard arguments of learned counsel for the appellant and re-examination the record on file, I find that learned counsel for the appellant has not been able to refer to any piece of evidence which could persuade me to hold that the conclusion arrived at by the learned trial court is against the weight of evidence available on record. The judgment of the learned trial court while acquitting the accused/respondent No.1 cannot be said to be perverse and reasons thereof are fanciful, capricious, speculative and artificial and in the absence of holding the order of acquittal as such, it cannot be interfered with. The learned trial court has dealt with all the contentions as agitated before me in the judgment impugned.

6. As per prosecution case the complainant entered into an oral agreement with respondent No.1 in the year 2006 regarding land measuring 319 kanals 03 marlas, from mouza Sood and Bodial District Rawalpindi and an amount of Rs.1,58,90,000/- was paid to him but the respondent transferred only 110 kanals from said Mauza @ Rs.53,000/- per kanal, total valuing 58,90,000/-. Subsequently, respondent No.1 entered into another agreement dated 25.07.2009 with the complainant and agreed to return remaining amount of Rs.1,10,00,000/- in three installments, however, he failed to return said amount and misappropriated the same. In order to prove his stance the prosecution produced as many as three witnesses. Lt. Col. Ahmad Yar Khan appeared as PW.1 whereas Sub. Muhammad Nawaz came forward as PW.2 who supported the prosecution version and Bashir S.I./I.O. appeared as PW.3. whereas the accused produced his version through his statement under section 342 Cr.P.C. After considering the evidence led by both the parties the learned trial Court has rightly observed that it was an oral agreement between HQ ASFC Logistic Cell Jarar Camp Rawalpindi and Saeed Azam respondent No.1. Lt. Col. Ahmad Yar Khan (PW.1) while appearing in the witness box though deposed in line with the prosecution case but during cross examination he admitted that the person who entered into oral agreement with respondent No.1 has been transferred. Similarly Sub. Muhammad Nawaz (PW.2) during his cross examination admitted that oral agreement was not executed in his presence. He also admitted that though he was member of purchase committee but oral agreement was not executed in his presence. Apart from said admissions on the part of prosecution witnesses it is observed that according to the definition of "Criminal breach of trust" contained in Section 405 P.P.C. following ingredients must exist:- i. That the property should be entrusted in any manner to the person; ii. He should have domain over the property; iii He dishonestly misappropriates or converts the property to its own use; or iv. Dishonestly uses or dispossess the property of any violation of law. A bare perusal of said section reveals that in view of the agreement between the partiers the provisions of section 406 P.P.C. are not attracted in the instant case as handing over of amount to respondent No.1 as trust is not proved. If handing over property or dominion over the property is not entrusted to any persons, hence provisions of section 406 P.P.C. are not attracted.

7. The observation of the learned trial court regarding acquittal of respondent No.1 is borne out from record and the prosecution has failed to prove its case against the accused/respondent beyond all reasonable doubts. I have also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the judgment of the lower court is perverse or that it is complete illegal and no other conclusion can be drawn except the guilt of the accused or there has been misreading or non-reading of the evidence resulting in miscarriage of justice, the acquittal order cannot be interfered with whereas an accused earns double presumption of innocence, as held in Muhammad Mansha Kausar v. Muhammad Asghar and others (2003 SCMR 477). In the light of above discussion regarding the factual position, this Court approved the findings arrived at by the learned trial court, I find no compelling and substantial reason to interfere with the judgment of acquittal passed by the learned trial court. So in the given circumstances, I do not find any infirmity or illegality in the acquittal order of the learned trial Court, same is not perverse and it has been held by the Hon'ble Supreme Court of Pakistan that in such circumstances, acquittal earned by an accused should not be disturbed. Reliance has been placed on the case reported as Jahangir v. Aminullah and others (2010 SCMR 491), therefore, while considering the total circumstances of the case, I am of the opinion that the appeal in hand lacks merit and the same is hereby dismissed in limine. SA/A-52/L Appeal dismissed.