MAMOON KAZI, J.----This appeal arises from the judgment; passed by the learned Presiding Officer, Special Court of Sind (Banks), Karachi, dated 30-5-1985, whereby the appellant has been convicted for offence under section 408, P.P.C. And sentenced to undergo R.I. For five years and to pay fine of Rs.2,50,000 and in default to undergo further R.I. For one year. In case of recovery of fine from the appellant a sum of Rs.1,15,000 was ordered to be paid to the Landhi Township Branch of Habib Bank Limited where the appellant was working at the time of the commission of the offence, to compensate the bank for the loss suffered thereby on account of commission of the offence by the appellant. The appellant was however, acquitted of offences under sections 468, 471 and 477-A of the P.P.C.
2. By a short order, dated 7-10-1985, this appeal was dismissed by us, but subject to modification that the sentence of the appellant was reduced from five years to that already undergone by him.
The fine of Rs.2,50,000 was also reduced to Rs.70,000. In default of fine, the appellant was to suffer further R.I. For six months. The reasons for this short order are to be recorded by us which are as follows:-
3. The facts of the case, according to the prosecution are, that the appellant was working as Second Officer in the Habib Bank Limited, Landhi Township Branch at Karachi between 6-12-1979 and March, 1981. During that period he hatched a plan to defraud the said branch of the bank and in pursuance of such plan he opened a fictitious Current Account No. 664 in the fake name of one Saleem Qureshi on 6-2-1980 in that branch. Thereafter, the appellant made fake credit entries of Rs.65,000 and Rs.50,000 in the Current Account No. 664 by showing credit of Cheques Nos. 648937 and 37896 purported to have been drawn on United Bank Limited, Gulshan-e-Iqbal Branch and National Bank of Pakistan Paposh Nagar Branch respectively, in favour of the account--holder, although neither such cheques were sent for clearance by the appellant nor the amounts mentioned in such cheques were actually received by the Landhi Township branch. A complaint in respect of the fraud was sent by Races Ahmad the then Manager of Habib Bank Limited, Landhi Township Branch, P.W. 1 to F.I.A. On the basis of which F.I.R. Was registered. Thereafter, investigation was started by Bashir Ahmad, Inspector F.I.A. Karachi, who recorded statements of the P.Ws. And also conducted search of the house of the appellant in presence of Mashirs and prepared Mashirnama Exh.2/M-4.
4. The appellant in his statement under section 342, Cr.P.C. Denied the allegations except that the handwriting on certain documents and some of the cheques through which different amounts were withdrawn by him was admitted by the appellant to be his.
5. The prosecution examined Raees Ahmad Ansari P.W. 1, Muhammad Taqi P.W. 2, Aftab Ahmad P.W.
3, Syed Ali Ahmad P.W.4, Syed Anwarul Hassan Arif P.W.5, Ashfaque Ahmad P.W.6, Kifayatullah P.W.7, Ahmad Ayub Khan P.W.8 and Bashir Ahmad P.W.9.
6. The question is, whether the appellant has committed the offence for which he has been convicted by the learned Presiding Officer? In this respect the evidence relied upon by the prosecution needs to be examined. Raees Ahmad, P.W. 1 has stated that he had verified the account opening form Exh. 2/A in respect of Account No: 664 at the instance of the appellant. The witness stated that this form was taken to him by the appellant who told him that during the witness's short absence from the branch on 2nd July, 1980 the account was opened by its holder who had signed the form in presence of the appellant. Since the form was filled in the handwriting of the appellant, the witness accepted the statement. He also produced requisition slip for issuance of cheque book to the account-holder as Exh.2/c and also identified the appellant's initials thereon. The evidence of this witness is further corroborated by that of Kifayatullah P.W. 7 who identified the appellant's handwriting on the account opening form and the requisition slip, for issuance of cheque book. This evidence points out that the appellant had issued a cheque book in question to the account holder of fictitious Account No. 664, although none of these two witnesses has stated that the signature on the account opening form is also in the handwriting of the appellant. However, the documents in question were sent to the handwriting expert Mr. Chughtai for his opinion whose opinion showed that the signatures on such documents tallied with the specimen signatures of the appellant. However, the handwriting expert could .Not be examined before the learned Presiding Officer on account of his death. The prosecution, through the evidence of P.W. Races Ahmad Ansari and Kifayatullah have also established that pay-in-slip for deposit of two cheques for Rs.65,000 and 50,000 respectively, which were deposited in Account No. 664, are in the handwriting of the appellant. Besides that documents marked as Exhs. 2/E, 2/F, 2/G, 2/J, 2/S, 8/B, 2/L, 2/M-1, 2/M-2 and 2/M-3 were also in the handwriting of the appellant according to the said witnesses. This fact was also admitted by the appellant in his statement under section 342, Cr.P.C.
Recorded by the Presiding Officer, although the handwriting on documents marked ac Fxh.2/A (account opening from) Exh 2/B (specimen signatures card) and Exh.2/C (requisition slip for cheques) was denied by the appellant to be his. Be that as it may, but no cogent reasons have been offered by the appellant's counsel to discard the evidence of Raees Ahmad Ansari and Kifayatullah. That shows that the documents whereby two cheques in question were sent for clearance to the Clearing House were prepared by the appellant in his own handwriting. The prosecution has further examined Syed Anwarul Hassan, Manager, Paposh Nagar Branch of the National Bank of Pakistan who has stated that Cheque No. 37896 (Exh.2/M-3) was never sent to the said Branch of the bank for clearing. Similarly Ashfaque Ahmad P.W.6 who was Manager, Gulshan- e-Iqbal branch of the United Bank Ltd. At the relevant time, has deposed that Cheque No. 646937 (Exh.D) neither pertained to the said branch of the Bank nor was it received there for clearing from Landhi Township Branch of the Habib Bank. Although in the cross--examination, P.W. Races Ahmad Ansari has admitted that there can be a possibility of the cheques having disappeared in the Clearing House, but this admission on the witness's part can hardly be of any avail to the appellant as the original cheque for Rs.50,000 was recovered-by the Investigating Officer from the house of the appellant vide Mashirnama Exh.2/M-4. In this respect it will be worthwhile to refer to the evidence of Syed Ali Ahmed P.W. 4 who was one of the Mashirs of the recovery and has clearly stated in his evidence that the search of the appellant's house was carried out in his presence and that of the appellant's brother, Ahmad Ayub Khan. Although Ahmad Ayub Khan turned hostile to the prosecution by stating that Exh.2/M (original page from then Clearing House Register) and 2/M-3 (Cheque for Rs.50,000) were not recovered from the search but this witness being the appellant's brother had reason to turn hostile. However, nothing has come out from the statement of this witness to discredit the evidence of the other Mashir of the search, namely, Syed All Ahmad. The evidence, therefore, clearly points out that the appellant prepared the clearing documents, in respect of- the two cheques as admitted by him, but the cheques were not sent by him for clearing. The evidence further points out that the amounts in the two cheques had also been credited in Account No. 664 by the appellant. The other witnesses whose evidence we find material, are Muhammad Taqi P.W. 2 and Muhammad Aftab P.W.
3. Muh9mmad Taqi was a cashier in the Landhi Township Branch of the Habib Bank. He has stated in clear terms that payment against cheque (Exh. 2/0-9) was made by him to 'the appellant personally. Similarly Aftab Ahmad, P.W.3 who was also a cashier at the relevant time in the said branch of the Habib Bank has stated that payments against ten cheques, Exh. 2/0-1, 2/0-2, 2/0-3, 2/0-4, 2/0-5, 2/0-7, 2/0-8, 2/0-10, 2/0-12 and 2/0-13 were made by him to the appellant. All such cheques were drawn from Account No.
664. Although in the cross-examination, this witness has stated that some times the appellant used to receive payments of bearer cheques on behalf of the customers who used to be sitting at his table but this piece of admission is not sufficient to discard the other evidence of P.W.3 who has clearly stated that payments against the cheques in question were made by him to the appellant.
No attempt was made by the appellant to dislodge this part of evidence.
7. In view of this evidence we have no doubt that the case against the appellant has been fully established. The conviction of the appellant under section 408, P.P.C. Is, therefore, maintained.
8. As regards the sentence of imprisonment awarded to the appellant by the learned Presiding Officer the contention of Mr. M. Ashraf Kazi, the learned counsel for the appellant is, that since the appellant has already been serving the sentence since 30-5-1985, and the amount involved in the fraud is not a heavy one, we should take a lenient view in respect of such sentence. The learned counsel has further pointed out that even the amount of fine is excessive, considering the fact, that out of a total sum of Rs.1,15,000 said to be involved in the fraud, only Rs.69,000 were actually withdrawn from the bank by the appellant leaving a balance of Rs.46,000 still lying in the bank. In this respect Mr. M. Ashraf Kazi has drawn our attention to the evidence of P.W. Raees Ahmad Ansari who has stated in his examination-in-chief that only a sum of Rs.69,000 was withdrawn by fourteen cheques by ; the appellant. The learned counsel for the appellant has -also placed reliance on an unreported case, Firoze Divecha v. The State and another Criminal Appeal No. 5 of 1985 in which a Division Bench of this Court while taking a lenient view of the matter reduced the sentence from two years and fine of Rs.3 lac to six months while maintaining the sentence of fine. Be that as it may, but according to the facts and circumstances of the instant case we agree that the sentence awarded to the appellant by the learned Presiding Officer is excessive. We, J therefore, reduce the sentence of imprisonment to that already undergone by the appellant. We further reduce the sentence of fine to Rs.70,000 in view of the statement made by P.W. 1 Raees Ahmad Ansari, to which we have already referred. In default of payment of fine, the appellant shall suffer further R.I. For 6 months. We further direct that the fine if realised may be paid to the Habib Bank Limited as l compensation for the fraud.