SYED ABDUR RAHMAN, J.---Appellant Attaur Rehman's was tried alongwith one Muhammad Hasnain by the Special Court (Offences in Banks) Karachi on the following amended charge dated 14-5-1989: "That you, in collusion with the two absconding accused (1) Omer Sharif, holder of account No. 783 at the Shaheed-e-Millat Road Branch of N.B.P., and (2) Hafiz Abdul Ghafoor, your father, on or about 18-10-1986, applied for a loan of Rs.2,00,000 from the above Branch in the false name of Muhammad Tariq and obtained the said amount of loan from the Bank by furnishing to the Bank as security forged documents and title deeds of Plot No. D-210, Block-4, Federal `B' Area, Karachi, i.e. Lease deed permission to mortgage the said property, the search certificate and also N.I.C.
Certificate No.504-62-375830, dated 21-10-1986, knowing or having reasons to believe that the said documents are forged.
And that further that seals were recovered from the possession of you accused Muhammad Hasnain the impressions of which seals correspond with impressions on the forged documents furnished to the Bank by you accused Atta-ur-Rehman's. "And you have thereby committed offences punishable under sections 419/420/468/471/109, P.P.C.
And within the cognizance of this Court."
2. Their plea was recorded on 14-5-1989 and both of them pleaded not guilty. During the course of trial prosecution has examined Abdus Salam Arif Bank Manager, who also produced numerous documents, Noor Muhammad, Bank Manager, Mirza Akhter Hussain, Senior Cashiei, Muhammad Hamid Khan, Sub-Registrar. Nisar Ahmad, N.I.C. Officer, Jethanand A.C.M., Abdur Rehman's. Shaikh Muhammad Din Handwriting Expert and Ali Hassan, Inspector F.IA. Their statements under section 342, Cr. P.C. Were recorded on 16-4-1990 in which they denied the prosecution allegations and claimed innocence. After the statements were completed and closed, the Court recorded their further statements, wherein they allegedly pleaded guilty and admitted to have committed the offence and prayed for mercy. Again on 7-5-1990 further statement of the appellant was recorded wherein he stated to have repaid Rs.2,00,000 plus Rs.50,000 to the bank. Both of them were convicted by the Presiding Officer of the Court under sections 419/420/468, P.P.C. And sentenced to suffer R.I. For four years under each of these counts with the direction that the same shall run concurrently. No fine was imposed upon them as they had repaid the entire dues of the bank. The period during which they remained in custody as under-trial' prisoners (which comes to 137 days in case of the appellant) was ordered to be deducted from the substantive sentence as provided under section 382-B Cr.P.C. The above conviction and sentence were shown as awarded on the basis of the evidence referred to above and the plea of guilty of the accused. This appeal, which has been preferred by appellant Atta-ur-Rehman's alone was, therefore admitted with a view to examine the legality and extent of the sentences, though legally speaking a belated plea of guilty recorded in the above circumstance is not to be taken as a plea of guilty, at all and the conviction on such a plea is to be treated as if it was a conviction on a plea. Of, not guilty. The Appellate Court in such a case can examine as to whether the conviction is proper and legal and is based on cogent and sufficient evidence.
3. The legality and propriety of the conviction and sentences awarded to the appellant under sections 419 and 420, P.P.C. Or the sufficiency or reliability of the evidence whereon it was based was not questioned. We also do not find any deficiency or illegality in the same. We would, however, like to observe that the learned trial Court should have enumerated the points for determination in its judgment. Only the legality of the conviction and sentence under section 468, P.P.C. Was challenged and it was submitted by appellant's counsel Mr. Ansar Hussain that since even according to the prosecution the appellant had merely used as genuine certain forged documents and had not himself forged the same, therefore, section 471, P.P.C. And not section 468, P.P.C., is the appropriate section under which the appellant could have been convicted and the maximum sentence, therefore, was three years. We agree with this contention of the appellant's counsel. It is clear from the reading of these two sections " juxtaposition that whereas section 468, P.P.C. Applies to a person who forges a 8 document, section 471, P.P.C. Applies to a person who uses a forged document as genuine. These two sections read as under: "468. Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document."
An accused who is convicted on his own plea of guilty is not precluded from showing that facts disclosed in the charge do not constitute the offence of C which he has been convicted even if it is on his plea of guilty. Similar view was taken by Saad Saood Jan, J. (as he then was) in 1985 P Cr. L J 2586, Kennith S. Ziebelman v. State. The facts of that case were that the appellant was searched when he was about to board from Pakistan for abroad and heroin was recovered from his possession. The charge showed that he was intending to smuggle the same out of Pakistan, which was an offence clause (8) of subsection (1) of section 156 while he was charged under clause (89) of subsection (1) of section 156 of Customs Act, which made smuggling heroin into Pakistan punishable. The conviction of the accused under section 156(1)(89) was held illegal and as offence under section 156(1)(8) being graver than the above, he could not be instead convicted thereunder, therefore, the conviction was set aside. Therefore, we are also of the view that the proper section under which the appellant could have been convicted and sentenced was section 471, P.P.C. Which is punishable with imprisonment extending upto three years only, as is provided in second schedule of Offences in respect of Banks (Special Courts) Ordinance, 1984. However since 471, P.P.C. Is a lesser offence vis-a-vis 468, P.P.C. His conviction can be altered accordingly but that would not change the cumulative effect of the sentence as all the sentences have been ordered to run concurrently.
4. It was pleaded by Mr. Ansar Hussain, Advocate that this was the first offence committed by the appellant who is a young man of about 30 years of age.
He had refunded the entire amount of Rs.2,50,000 which was alleged to have been obtained by him as a loan by using forged documents. The appellant, therefore, deserved leniency. He submitted that the sentence of two years' S.I. Would be appropriate in the circumstances of the case. Mr. Ali Nawaz Dahraj, Advocate representing the D.A: G. And Mr. Hayat Qureshi, Advocate representing the Advocate-General have supported the plea and conceded that these were extenuating circumstances justifying reduction in sentence and that sentence of two years' S.I. Would be appropriate in the circumstances of the case.
Reference was, made to 1986 P Cr. L J 2190 Dr. Shabbir Ahmad v The State, where sentence of one year was considered sufficient in similar circumstances. In 1988 P Cr. L J 362 Abdur Rashid v. State a D.B. Of this Court consisting of Ajmal Mian, J. (as he then was) and Syed Abdur Rahman, J. (one of us) did not approve of imposition of maximum sentence and reduced it to that of one year.
5. We are also of the view that on taking into consideration the facts (i) that the amount involved in this offence has been refunded by the appellant, (ii) that he had admitted his guilt and made a clean breast of himself during the course of trial though at a belated stage and (i.e) that he is a young man of about 30 years, the reduction of sentence to two years and conversion of it in simple imprisonment would be appropriate in the circumstances of the case. Hence whereas we uphold the conviction of the appellant under sections 419 and 420, P.P.C. And alter his conviction under section 468 to that under section 471, P.P.C., we reduce his sentence from the sentence of 4 years'
R.I. To a sentence of two years' S.I. Under each of the above counts which shall run concurrently as already ordered by the trial Court and also maintain the benefit given to him under section 382-B, Cr.P.C. With this modification in the quantum and nature of sentence the appeal is otherwise dismissed.