' SALAHUDDIN MIRZA, J.---Proceedings under section 406/418/420/468/ 471/34, P.P.C. Were instituted against the appellant and Messrs J.A. Enterprises on the basis of a written complaint dated 1-6- 1987 lodged by P.W.1 Muhammad Anwar Sodagar, Manager of Muslim Commercial Bank, Victoria Road Branch, Karachi, with Commercial Banks Circle of F.I.A. The gist of the complaint is that appellant Syed Jamal Shahid, Proprietor of the firm Messrs J.A. Enterprises opened a current account with the said branch of the bank on 29-7-1986, and on 23rd August applied for financial accommodation to the extent of Rs,4,90,000 under Part I of the Export Finance Scheme of State Bank for financial an export transaction covered by Contract No,JA./005/86 dated 4-8-1986 for US dollars 42,000 for the export of shirts. The facility asked for was granted and necessary formalities were completed. Later, the appellant complained that the importer had failed to open letter of credit and, therefore, the contract could not be acted upon and prayed for the permission to utilise the finance in respect of another Export Contract No,000955 dated 27-10-1986 with Messrs Robox Limited of United Kingdom. He claimed that the export/shipment had already been effected on 25- 11-1986. The request was granted by the bank whereupon the appellant tendered the Bill of Lading to the bank, alongwith other documents. The bill of lading purported to have been issued by the Shipping Agents M/s. Brigstoke Eduljee & Company of Karachi on behalf of their Principals Messrs Godess Ocean Line. The complainant Bank sent the documents for collection to importer's bank (Habib Bank London) but no one cared to retire the documents in spite of repeated reminders of Habib Bank London. When the complainant Bank came to know of this position, it contacted the Shipping Agents Messrs Brigstocke Eduljee & Company in May, 1987 to ascertain the position as to where the consignment was lying. In reply to this inquiry, the Shipping Agents informed the complainant Bank that no shipment was made through them and that the bill of lading was forged. It was evident that the appellant and his company had played fraud upon the bank and in fact there was no export contract with the U.K. Firm and nothing was exported and forged bill of lading was submitted to the bank. Hence the complaint. Later it turned out that the appellant had tendered forged title-deeds in the name of Raja Banaras Khan previous owner of the property while pledging immovable property with the bank by way of security of the loan. During the course of investigation it was found that one Maqbool Ahmed Waseem who was an associate of the appellant was also involved in the commission of the crime and this Maqbool Ahmed Waseem managed to escape abroad in time and could not be apprehended and the investigation agency put up challan only against the appellant and the said Maqbool Ahmed Waseem was shown as absconder.
2. Learned Special Court (Offences in Banks) at Karachi framed the following charge against the appellant:-- "I, Justice (Retd.) ZA. Channa, Presiding Officer, Special Court (Offences in Banks) Karachi, hereby charge you accused Syed Jamal Shahid son of Syed Shahid Hussain as follows:-- ' That you alongwith absconding accused Maqbool Ahmed Wasim Malik son of Ghulam Ali Malik hatched a plan to defraud the Abdullah Haroon Branch of M.C.B.; ' That in pursuance of the said plan you Syed Jamal Shahid, on 21-7-1986, opened an account with the Abdullah Haroon Road Branch of M.C.B., Karachi, bearing No,1408, in the name of Messrs JA.
Enterprises, of which you represented yourself to be the proprietor, and on the basis of forged documents relating to properties Nos.R-393 and R-294, Block 9, Federal B Area, Karachi, which documents were dishonestly forged by you and/or by absconding accused Maqbool Ahmed, in pursuance of the common intention of you both and delivered by you to the bank, you fraudulently obtained finance of Rs,4,90,000 under Pak money of the Export Finance Scheme of the State Bank of Pakistan, on Mark-up basis, which finances were to be exclusively utilized to finance exports covered under Contract L.C. BA/005/56, dated 4-8-1986; ' That subsequently you and absconding accused Maqbool Ahmed Wasim Malik, in pursuance of the common intention of you both, forged a Bill of Lading No,KH-23, dated 25th November, 1986, allegedly issued by Bridgstock and Company, Shipping, Clearing and Forwarding Agents, and presented the said forged bill of lading to the bank in support of your false claim that the goods covered by the bill of lading have been shipped when in fact no goods had been exported or shipped; ' And you thereby caused wrongful loss to the M.C.B. Of the said amount of Rs,4,90,000 and committed offence punishable under sections 420, 468 and 471, P.P.C. Read with section 34, P.P.C.
And within the cognizance of this Court.
' And I hereby direct that you be tried by this Court on the aforesaid charge.
(Sd.)
(ZA. Channa) Presiding Officer Special Court (Offences in Banks) Karachi."
' The appellant pleaded not guilty to the above charge and claimed to be tried.
3. The prosecution examined as many as nine witnesses in support of its case, including Mr. Muhammad Khan, A.C.M. Court No,7, Karachi East, who had recorded judicial confession of the appellant. The appellant in his 342, Cr.P.C. Statement admitted practically the entire prosecution case except that he laid the entire blame of forgeries upon the shoulders of co-accused Maqbool Ahmed Waseem who was associated with him in his business and the appellant claimed that he himself was ignorant of these forgeries. He, however, admitted, without any reservation, the truthfulness of his confession. In defence he examined two witnesses.
4. It may be noted that the appellant was arrested on 10th June, 1987 and was last produced in custody before the Court on 9-2-1988 when he gave up the remaining defence witnesses and the case was adjourned to 24-2-1988. In between these two dates he was granted bail and immediately absconded and did not appear before the Court on 24-2-1988 and an application was moved on his behalf that he had met an accident at Lahore. Two documents were attached with this application. One was a police report about a road accident and the other was a medical certificate issued by Dr. Shaukat Khan of Lahore. Here, however, there was a slip as the medical certificate, instead of mentioning any injury on the body, merely stated that the appellant was suffering from peptic ulcer. Learned trial Judge was therefore skeptical of the certificate and summoned the doctor alongwith relevant record. On the next date the doctor sent another certificate, this time adding thigh injury, in addition to peptic ulcer whereupon summons to the doctor were recalled and absence of appellant was condoned. The appellant, however, did not appear before the Court on the subsequent date and sent a fresh certificate from Services Hospital, Lahore. Yet another certificate from the same hospital was sent on the subsequent date of hearing and it was followed by yet a third certificate from the same hospital on 27-4-1988 and on the next date (8-5-1988) learned defence counsel made a statement at the Bar that the appellant had died at Lahore. On 15-5-1988 father of the appellant Syed Shahid Hussain (who is also an advocate) filed his affidavit testifying to the death of the appellant on 3-5-1988 at Hafizabad, District Faisalabad. However, when learned counsel for complainant bank stated on 8-6-1988 that his enquiries did not establish such death at Hafizabad, learned trial Judge issued N.B.Ws. Of the appellant. On 16-6-1988 it was apparent that the appellant had not died and the claim was just a fraud. Medical Superintendent of Services Hospital, Lahore reported that two of the three certificates issued from that Hospital were forged and whereas the third certificate was genuinely issued from the said Hospital but the appellant was never treated there, either as an outdoor patient or as an indoor patient and 'on-the-spot inquiries' conducted by F.I.A. Revealed that no Syed Jamal Shahid was involved in a road accident between Lahore and Hafizabad during April or May and no such person was reported injured or dead in road accident. Iii view of this position learned trial Judge proceeded against the appellant under section 5(4)(a) of Ordinance IX of 1984.
When, subsequently, bail-bond of the surety was cancelled it was found that even the surety papers were forged and a fictitious person was produced as a surety. And, in due course, it was also found that the appellant had preferred rebate claims with the Customs Department as would appear from the evidence of Saleem Akhtar Assistant Collector of Customs (recorded on 16-8- 1988), Mr. Fateh Muhammad, Assistant Collector of Customs (recorded on 31-8-1988) and Mr. Muhammad Tasleem Akhtar Treasury Officer of Customs Department (partly recorded on 31-8- 1988 and partly on 4-9-1988). According to Mr. Fateh Muhammad, Assistant Collector, these rebate claims in respect of Pyramid Traders amount to Rs,ten lakh and, in respect of J.A. Traders, to Rs,7- 1/2 lakh. It may be noted that the Messrs Pyramid Traders is also a firm of the appellant and is the subject-matter of another criminal case against the appellant in respect of which Appeal No,173 of 1990 is pending against the appellant and is being disposed of today by a separate judgment.
There is also on record an application of Mr. Sarmad Osmani, Advocate on behalf of Hong Kong Bank Limited (on the file of Case No,14 of 1987) that Hong Kong Bank was also defrauded by the appellat in similar manner.
5. After proceeding against the appellant under section 5(4)(a) of the Ordinance, learned trial Judge heard the arguments of learned State counsel and vide impugned judgment, dated 4-9- 1988 acquitted the appellant for an offence under section 468, P.P.C. But found him guilty under section 420, P.P.C. And section 471, P.P.C. And sentenced him as follows:-- "(1) Under section 420, P.P.C. To R.I. For five years and a fine of Rs,5 Lakhs or further R.I. For 18 months in lieu of fine.
(2) Under section 471, P.P.C. To R.I. For five years and a fine of Rs,5 Lakhs or further R.I. For 18 months in lieu of fine."
Both the sentences, as well as sentence in default of payment of fine, to run consecutively."
6. The judgment in absentia was announced on 4th September, 1988 and the appellant remained fugitive from law (presumably dead, according to the claim of his father, counsel and friends) until 1st June, 1989 when he was, as it were, dug up from the grave and arrested and committed to prison to undergo his sentence.
7. We have heard the appellant in person and learned State counsel and have examined the record.
8. At the very outset, learned State counsel raised an objection that the appeal is hopelessly barred by time. The judgment was announced in absentia on 4-9-1988, the appellant was later arrested on 1st June, 1989 and this appeal was filed through Superintendent of Central Jail on 28-8-1990. The appellant explained the delay by asserting that copy of judgment was delivered to him very late. In order to determine the date on which copy of judgment was delivered to the appellant we directed the jail authorities to produce the relevant record. This record was produced before us which showed that copy of the judgment was delivered to the appellant on 28-9-1989 against his signatures. The period of limitation for filing the appeal would thus run from 28-9-1989. Since the appeal was filed after 11 months of the receipt of copy of judgment, it is, without any shadow of doubt, hopelessly barred by time. Application dated NIL for condonation of delay makes vague assertion and conceals the date on which the appellant received copy of judgment. It also makes a reference to Miscellanteous Application No,36 of 1989 earlier filed by the appellant for 'Leave to Appeal before Honourable High Court' through late Muhammad Ali Shaikh, Advocate. This was misleading reference as no such application could be traced in the office. Besides, application to High Court for 'Leave to Appeal' is not understandable. No such application could be traced in the office of this Court. Application for condonation of delay (Miscellaneous Application No,1806 of 1990) is thus without merit and is dismissed. The appeal is, therefore, liable to dismissal on the point of limitation.
9. Even though the appeal is barred by time as held in para. 8 above, we have examined the case also on merits. The prosecution case is well-supported by the evidence on record. P.W.1 the complainant (Mr. Muhammad Anwar Sodagar, Manager of the Bank) produced all the relevant documents pertaining to the transaction. He denied a suggestion in cross-examination that he was also involved in this fraudulent transaction. The suggestion was a tacit admission of the charge by the appellant. P.W.2 is Mr. Abdul Razak, General Manager of Messrs Brigstocke Eduljee & Co., the Shipping Agents who had allegedly issued the bill of lading Exhs. 3/A, 3/A-1 and 3/A-2 and he testified that his company had not issued them and they were forged and bore fictitious numbers. In his 342, Cr.P.C. Statement the appellant did not claim that these bills of lading were genuine. He clearly shifted the responsibility of procuring them to co-accused Maqbool Ahmed Waseem without explaining how and in what capacity the latter came in the picture when the appellant had been shown as the sole proprietor of the firm Messrs J.A. Enterprises. P.W.4 Syed Muhammad Razi, Advocate stated that he knew both .The accused and on 23-9-1986 met them in the office of Sub-Magistrate 'T'-13 Division when a third person not known to Mr. Razi was with them and the accused introduced him to Mr. Razi as Raja Banaras Khan who wanted to take a loan from a bank and in that connection had come there to get registered power of attorney in favour of the bank and they requested Mr. Razi to get the work done and he, after satisfying himself of the bona fides of the transaction, identified the said Raja Banaras before the Sub-Registrar and got the work done. He was not cross-examined by the appellant. P.W.5 Jalal Ahmed Ansar stated that House No,R-298/294, Block-9, Federal 'B' Area Karachi was purchased by his mother Aman Khatoon from Raja Banaras in 1968 (This is the house which was allegedly pledged by Raja Banaras with the bank on 23-9-1986 to secure the loan taken by the appellant). He further submitted that when he tried to contact Raja Banaras Khan for getting the house transferred in the official record in the name of his mother, he discovered that Raja Banaras Khan had died on 13-11-1984 in Tehsil Rawalpindi and he produced certified copy of death certificate of Raja Banaras Khan, issued by the concerned Union Council as Exh.6/D. He identified the appellant and said he knew him and co-accused Maqbool Waseem for 4 or 5 years (prior to September, 1987 when he was examined). He further said that two years prior to the day of deposition (which comes to September, 1985) the appellant had established his office adjacent to his office and one day he (witness Ansari) asked Maqbool Ahmed Waseem whether he knew anyone in the Registrar's office and could get the house transferred from the name of Raja Banaras Khan to the name of the witness and his brother (as the heirs of their mother who had since died) whereupon Maqbool Ahmed Waseem informed him that his partner, the appellant, was an expert in property matters and offered to get the work done. At this, the witness further deposed, he handed over to him photo copy of the lease agreement between K.D.A. And Raja Banaras Khan and copies of other relevant documents. The witness showed to the Court this original lease deed whose copy was retained on record as Exh. 6-E. The witness further said that after keeping the documents with him for about six months, Maqbool Ahmad Waseem expressed his inability to help the witness and returned all the documents. The witness further said that he came to know of the fraud committed by the appellant and Maqbool Ahmad Waseem when in May, 1987 the bank people and the F.I.A. Made inquiries from him. He produced a notice, dated 11-6-1987 Exh.6/F, given to him and his brother by Mr. Khizer Askar Zaidi, Advocate, allegedly at the instance of Raja Banaras Khan through his attorney Mr. Muhammad Asghar, claiming to be the landlord of Mr. Ansari and demanding rent. The notice was replied by the witness vide Exh.6/F-1. It is significant to note that the appellant did not, in his defence, examine'
Raja Banaras Khan who would have been only too willing to come forward, if he were alive, to defend his title to the property and his interest therein. Quite obviously, a fictitious person was produced by the appellant before the Sub-Registrar. P.W.5 Muhammad Zafar Baloch is the Sub- Registrar who had on 23-9-1986 registered the power of attorney allegedly executed by Raja Banaras in favour of the bank. P.W.7 Ghulam Nabi Jokhyo is Sub-Registrar who was incharge of T-7 Division at the relevant time and he said that lease deed Exh.2/D-1 was not registered in the office and it bore forged endorsement to that effect. This allegedly registered lease deed is executed between K.D.A. And Raja Banaras on 4-7-1962 and was allegedly registered on 5-7-1962 and it was deposited by the appellant with the bank. P.W.8 Wazir Ali G. Hussain is a Consulting Engineer who maintains his office at 336/C, Mohsin Mansion, Central Commercial Area, Off Tariq Road, Karachi, for the last about 6-7 years prior to October 1987 and he said that prior to him Messrs Kamal Associates Engineers had their office in these premises. The appellant had submitted to the bank a Valuation Certificate dated 27-7-1986 in respect of the pledged house from this Messrs Kamal Associates and Mr. Wazir Ali G. Hussain was examined to show that this certificate was bogus and forged as Messrs Kamal Associates had ceased to have their office in these premises since about 1981 (6 or 7 years prior to 1987 when Mr. Wazir Ali G. Hussain was examined) and since 1981 or so Mr. Wazir Ali G. Hussain was having his office at this address. This clearly proves the forged nature of the Valuation Certificate Exh.9/A. P.W.8 Khalique Zaman Khan is the Investigating Officer. The above evidence proves beyond any shadow of doubt that the appellant, apparently in association with absconding accused Maqbool Waseem, swindled the bank in a very clever way and everything connected with the loan transaction is forged and fraudulent. Even bail was obtained by the appellant on the basis of forged surety papers. The evidence of D.W.1 Mustafa Ahmed, even if believed---and I doubt if it is worth believing, he does not even know the name of the Bank Manager---does not help the appellant since what he stated was that absconding accused was with the appellant when the latter had the final meeting with the Bank Manager and it was the absconding accused to whom the loan amount of Rs,4,90,000 was paid. After all the loan was obtained by appellant, not by the co-accused. Besides the amount of a loan is never paid by a Manager; it is paid by the Cashier of the Bank. A Manager never deals in cash. Moreover, the appellant admitted in his 342, Cr.P.C. Statement that the entire loan amount of Rs,4,90,000 was withdrawn by him and thus contradicted D.W.1 Mustafa Ahmed.
10. Besides this evidence, there is the judicial confession of the appellant. The appellant did not retract the confession and stood by it. In this confession, which was proved by P.W.3 Mr. Muhammad Khan A.C.M. Who had recorded it, the appellant has admitted having obtained the loan on the basis of forged documents although he says that he was not aware that they were forged and he shifted the entire ,blame to his friend and partner-in-crime, Maqbool Wasim Malik. It was, however, argued by the appellant that his confession was recorded on 22-6-1987 but he was sent to jail on 23-6-1987 and it showed he was returned to police custody after the recording of confession and, therefore, the confession was of no value. He had not made any insinuation in his 342, Cr.P.C. Statement that the confession was not truthful or was not made voluntarily. Besides, this is a misleading argument. Firstly, at no time during the trial proceedings did the appellant challenge the veracity of his confession and in his 342, Cr.P.C. Statement he vouchasafed to its truthfulness and voluntary nature. Relevant question and answer are reproduced below:-- "Q. Your attention is invited to the evidence of Magistrate P.W. Muhammad Khan who has testified that he had recorded your confession, Exh.4/A, on 22-6-1987 and that it was true and voluntary. Do you wish to say anything in that behalf?
' Ans. I had given the confessional statement before the Magistrate."
' In the face of this position, the appellant cannot raise this objection at appellate stage. Secondly, the warrant of committment Exh.13-A is dated 22-6-1987 which clearly shows that immediatley after the confession was recorded, the appellant was remanded to jail custody. He was no doubt received in the jail on 23-6-1987 but the Assistant Superintendent Jail (D.W.2) explained that when a prisoner is received late he is not accepted and is returned with the direction to the escort to bring him the next morning and in the meantime he is lodged in the nearest police station. It is thus obvious that the appellant was produced late at the jail gate and was not, therefore, accepted by Jail authorities on 22-6-1987. As such this delay does not affect the value of the confession.
11. The evidence on record has established beyond doubt that the appellant has committed fraud and misappropriated the bank money. He produced a fictitious person, impersonating as Raja Banaras Khan deceased, who stood surety for the loan and produced forged title deeds in his favour in respect of the house which in fact belonged to P.W.5 Mr. Ansari and his brothers and thus obtained a loan of Rs,4,90,000 from the bank. He produced a forged export order before the bank and tendered to it forged Bills of Lading. He secured his release on bail on the strength of forged surety papers and by producing a bogus and non-existent person as surety. He managed to procure bogus and forged medical certificates from Lahore. He fraudulently proclaimed himself dead. The charges under section 420/471, P.P.C. Against the appellant have been sufficiently estbalished. We find no merit in the appeal.
12. In view of what has been stated above, the appeal is dismissed on the point of limitation as well as on merits.
13. The appellant, however, has also pointed out that the maximum sentence provided under section 471, P.P.C. Read with item 4 of Second Schedule to the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance No,IX of 1984), is three years plus fine but the learned trial Court has awarded `five years' R.I. Even under section 471, P.P.C. The point raised by the appellant appears to be correct. Item 4 in the Second Schedule provides as follows:-- "4. Section 471.---For the words 'in the same manner as if he had forged such documents' the words 'with imprisonment of either description for a term which shall not be less than one year nor more than three years, and shall also be liable to fine 'shall be substituted."
' As such sentence of five years under section 471, P.P.C. Cannot be sustained. We would, therefore, exercising the power vested in the High Court under section 561-A, Cr.P.C. Reduce the sentence awarded under section 471, P.P.C. From five years' R.I. To three years' R.I. And, resultantly, in view of section 65, P.P.C., imprisonment in lieu of fine is also reduced from 18 months to nine (9) months. As such the sentence awarded to the appellant under section 471, P.P.C. Is modified to this extent.