JUDGMENT ALI BAQAR NAJAFI, J. --- This appeal is directed against the order dated 03.02.2010 passed by the learned Judicial Magistrate, Rawalpindi, whereby he acquitted respondent Nos. 1 to 4 on an application Under Section 249-A, Cr.P.C, in a complaint case under Sections 380,406,454, P.P.C.
2. The prosecution case as narrated in the complaint is that the complainant's readymade garments factory started in 1999 at Chaklala Scheme No. 3, Rawalpindi but due to some unknown reasons he closed his business and put his precious articles regarding factory machinery and dowry articles of his were value Rs. 17,00,000/- in his house situated at Dhoke Chadrian, C-Block, Rawalpindi in a single room and locked the same in 2004 and the remaining four rooms of the said house were given to accused-respondent Muhammad Nasim through rent agreement and went abroad in connection with some employment. The complainant when came back from Saudi Arabia to Pakistan and went to his house and found accused Muhammad Nasim in illegal possession over his house who had misappropriated the said articles.
3. The complainant reported the matter to the police but F.I.R, was not lodged and thereafter he moved an application under Section 22-A, Cr.P.C, and in the light of direction of Ex-officio Justice of Peace, Rawalpindi F.I.R. No. 708, dated 03.10.2007 stood registered but later on same was cancelled by the. Local police; therefore, the complainant was constrained to file the private complaint in which respondents were summoned to face trial. Charge Was framed and prosecution evidence was recorded. Statements of respondents were also recorded. The learned Trial Court after hearing the parties acquitted respondent Nos. I to 4 under Section 249-A, Cr.P.C, vide judgment dated 03.02.2010. Hence this appeal.
3. The learned counsel for the appellant contends that the impugned judgment is against law and facts of the case; that when the prosecution evidence had already been recorded then application of Section 249- A, Cr.P.C, could not be applied and as such the learned Trial Court has committed material illegality in acquitting the respondent under Section 249-A, Cr.P.C., that the appellant has fully proved his case on record by way of evidence but the learned Trial Court has failed to appreciate prosecution evidence properly; that the impugned judgment is result of misreading and non- reading of material which has caused miscarriage of justice and prays for acceptance of this appeal.
4. On the other hand, learned counsel for respondents Nos. 1 to 4 has vehemently opposed the appeal by defending the impugned judgment of acquittal and: submits that allegation against respondents Nos. 1 No. 4 are baseless; that F.I.R. No. 708, dated 03.10.2007 stood registered against the respondents but during the investigation they were found innocent; that investigation was changed on an application filed by the appellant by the D.I.G. Police, Rawalpindi in which the respondents were also found innocent; that it is also admitted by the complainant himself that he closed his alleged factory in 1999 and within 6 months he left Pakistan for Saudi Arabia and came back to Pakistan in June, 2007 then how he rented the disputed house to the respondents in 2004 that nothing was recovered from the respondents and prays for dismissal of the instant appeal.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly, the appellant complainant went to Saudi Arabia in 1999 after close of his factory and returned back in 2007. As per his complaint he rented out the portion of house to the respondents in 2004 which seems not possible. The power of acquittal under Section 249-A, Cr.P.C, can be exercised if the conviction is not possible on the basis of evidence brought on record. The elements of theft and criminal breach of trust are missing in the prosecution evidence. The learned Trial Court passed a well-reasoned order after hearing the adversary. I am fortified by the view taken in Zahoor-ud-Din v. Khushi Muhammad and 6 others (1998 SCM R 1840) and State through Secretary Ministry of Interior v. Ashiq Ali Bhutto (1993 SCM R 523). This appeal is, therefore, dismissed in the above circumstances.