Mrs. HAMIDA ALTAF vs LIAQAT ALI and 2 otherss

ORDER

' Mrs. Hameeda Altaf, the appellant has brought the instant appeal challenging the acquittal of the respondents Nos.1 and 2 vide the order, dated 20-3-2003 passed by Syed Awais Ashraf Gillani, the learned Judicial Magistrate Section 30, Pakpattan Sharif in case F.I.R. No,186, dated 29-9-2000, under sections 408/511/109, P.P.C. Registered with Police Station Farid Nagar, District Pakpattan Sharif.

2. Briefly the facts relevant for the disposal of the same are that the abovementioned case was registered on the written application of the appellant. She has alleged therein that she is Principal of Government College for Women, Pakpattan Sharif. Liaqat Ali (respondent No,1) is clerk there, who about 18 days ago had got prepared the duplicate keys of lockers and almirah of the college and gave the same to Ghulam Farid, watchman to open these and bring out the cheque books and other documents from the same and handed over to him. Ghulam Farid, watchman after remaining in mental conflict during that period discussed the same with other watchman there namely Nazir Ahmad and they decided to bring it to her notice. They on 27-9-2000 informed her about the same. Ghulam Farid, watchman in presence of Nazir Ahmad handed over the five keys to her and admitted his mistake and sought apology from her. Liaqat Ali was the special person of Ex- Principal and is expert in forging signatures. He had done all that at her (Ex-Principal) instance.

Because she was posted in that college in her place and the same was felt by her. Had Liaqat Ali succeeded in his design, it would have been matter of irreparable loss to the college. Hence the case.

3. The respondents Nos.l and 2 after investigation were challaned to the Court. After recording of some of the evidence in the case, these respondents have moved application under section 249-A, Cr.P.C. For their acquittal.

4. The learned trial Court after hearing the parties came to the conclusion that the prosecution evidence brought on record did not link them up satisfactorily with the charge and the remaining, even if may be brought on record, the case against them cannot end into their conviction. It with the same acquitted them of the charge while exercising its powers under section 249-A, Cr.P.C.

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 and ahnirah 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 did anything admittedly bring 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 constructive 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.