' ABDUS SATTAR ASGHAR K ausar Bibi. Muhammad Ashraf and Azharan Bibi respondents Nos.2 to 4/accused in case F.I.R. No,198 of 2004 dated 26-7-2004, under sections 420/406, P.P.C., Police Station City Haroonabad, District Bahawalnagar were tried by the learned Magistrate 1st Class Haroonabad. The learned, trial Court vide judgment dated 19-2-201i convicted them under section 420, P.P.C. And sentenced with three years Simple Imprisonment along with fine of Rs,20000 each and in default of payment of the same to suffer further S.I. For a period of three months each.
Benefit of section 382-B. Cr.P.C. Was also extended. Feeling aggrieved, they lodged a Criminal Appeal against the above convictions and sentences before the learned Additional Sessions Judge Haroonabad. Appeal was accepted and respondents Nos.2 Nto 4 were acquitted given benefit of doubt vide judgment dated 3-6-2011 impugned through this appeal under section 417(2)A, Cr.P.C.
2. It is argued by learned counsel for the appellant/complainant that the prosecution has proved its case to the hilt by producing the complainant himself as P.W.1, Mst. Sughran Bibi (P.W.2) and Mst.
Safia Bibi (P.W.3); that the learned first Appellate Court fell in grave error while pronouncing the acquittal in favour of accused/respondents Nos.2 to 4 based on non-reading and misreading of evidence causing miscarriage of justice; that the impugned judgment of acquittal is liable to set aside and the respondents deserve conviction with maximum punishment as envisaged under the law.
3. I have given patient- hearing to the learned counsel for the appellant and perused the record.
4. Sobedar (Rtd.) Lateef Ahmed the complainant through F.I.R. (Exh.PA) alleged that Muhammad ,Ashraf Kamboh in furtherance or common intention with his wife Kausar Bibi and one Azhran Bibi wife of Allah Dita through dishonest inducement and cheating extorted a sum of Rs,15,000 from his wife Mumtaz Bibi, a sum of Rs,1,70,000 from Sughran Bibi daughter of Babu Khan and sum of Rs,9,000 from Safia Bibi wife of Muhammad Yousaf and many other inhabitants of the village with a promise to pay Rs,200 per month as profit against Rs,1,000 and thus committed criminal breach of trust. After submission of challan respondents Nos.2 to 4 were formally charge-sheeted by the learned trial Magistrate on 23-5-2005 under section 420/406, P.P.C., to which they pleaded not guilty and claimed to be tried. Complainant himself deposed as P.W.1, Mst. Sughran Bibi as P.W.2 and Mst. Safia Bibi as P.W.3. After concluding the prosecution evidence, the learned trial Magistrate recorded the statements of the accused under section 342, Cr.P.C. Whereby they rejected each and every piece of prosecution evidence and pleaded their innocence.
5. Record further transpires that in the F.I.R. (Exh.PA) as many as fifteen affectees are mentioned from whom allegedly respondents extorted different amounts total whereof comes to the tune of Rs,5,78,000. In the F.I.R. (Exh.PA) he has not alleged that respondents had extorted the said amounts in his presence. No date, time and place of the alleged occurrence of extortion of money by the respondents from various affectees are given in the F.I.R. Or in the statements of P.Ws. Although in the F.I.R., complainant has categorically stated that respondents extorted a sum of Rs,15.000 from his wife but he failed to produce his wife in the witness box. Sughran Bibi (P.W.2) while appearing in the witness box stated that about seven years back accused asked her that if she will give amount for business they will pay herRs,200 as profit on Rs,1,000; that Azhran Bibi asked her to hand over the amount to accused persons being connived with the others and she gave Rs,1,70,000 to the accused person; that despite arbitration accused persons did not return the amount. During cross- examination she stated that Mst. Kausar Bibi was sitting when she handed over the amount of Muhammad Ashraf accused, who further handed over the amount to his B wife Mst. Kausar Bibi.
Safia Bibi (P.W.3) deposed that about seven years back she gave an amount of Rs,15,000 to the accused. While facing the cross-examination she stated that amount was paid to Muhammad Ashraf accused in the drawing room of the complainant upon the message of Azhran Bibi and despite arbitration accused refused to return the amount. Contrary to the above, in the F.I.R.
(Exh.PA) it is stated that she had paid Rs,9,000 to the accused. Muhammad Lateef complainant himself admitted during cross-examination that in result of arbitration between the parties Azhran Bibi gave Rs,50,000 to him. He C further stated that he has paid the said amount to the affectees.
6. Provision of section 405, P.P.C. And section 420, P.P.C. Are reproduced hereby for ready reference:- "405. Criminal Breach of trust:-Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express, or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "Criminal breach of trust".
420. Cheating and dishonestly inducing delivery of property:- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy' the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable or being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
7. Careful appraisal of both the above quoted provisions makes it crystal clear that in criminal breach of trust, property is voluntarily delivered by the aggrieved person whereas in the case of cheating aggrieved person is deceitfully induced to part with the property. In the case of criminal breach of trust element of dishonesty occurs after entrustment of the property whereas in the case of cheating the dishonest intention from the very outset is sine qua none. In the instant case prosecution has not been able to produce any confidence-inspiring or reliable ocular account with regard to payments of the alleged amounts to the accused. No date, time or place of the alleged payments to the accused is established on the record. Admittedly arbitration has also been held between the parties and a sum of Rs 50,000 was paid by one of the accused to the complainant.
As per prosecution version they paid some amounts to the accused against a fixed profit. Needless to mention that payment of .Profit does not bring a contract between the parties within provisions of sections 420/406, P.P.C.
8. It is cardinal principle of criminal law that prosecution remains under heavy burden to prove the charge beyond any shadow of doubt. In the instant case prosecution has not been able to bring the guilt home to the respondent Nos.2 to 4 beyond any reasonable doubt. In order to extend benefit of doubt it is not necessary that there should be special circumstances creating multiple doubts rather single reasonable doubt is sufficient to grant such benefit to the accused as a matter of right. Therefore, impugned judgment of conviction passed by the learned trial Court based upon misappreciation of evidence likely to cause injustice to the respondents Nos.2 to 4 was not tenable in the eye of law. Consequently, in the absence of any confidence inspiring and reliable evidence from the prosecution side learned first Appellate Court H appreciating material contradictions and discrepancies in the prosecution evidence has rightly granted acquittal to the respondents given benefit of doubt. Impugned well-reasoned judgment is neither perverse nor arbitrary. I have no reason to interfere in the impugned judgment. This appeal has no merit and is dismissed in limine.