SALAHUDDIN MIRZA, J- Proceedings under section 406/418/420/468/471/34 PPC were instituted against the appellant and M/s J.A. Enterprises on the basis of a written complaint dated 1.6.1987 lodged by PW-1 Mohammad 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 M/s 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-1 of the Export Finance Scheme of State Bank for financial an export transaction covered by Contract No.1.A./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 permission to utilise the finances in respect of another export contract No.000955 dated 27.10.1986 with M/s Ro box 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 Brigstocke Eduljee & Company of Karachi on behalf of their Principals M/s 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 inspite of repeated reminders of Habib Ba London. When the complainant bank came to know of this position, it contact. ;.He Shipping Agents M/s 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 UK 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) Z.A. Channa, Presiding Officer, Special Court (Offences in Banks) Karachi, hereby charge you accused Syed Jamal Shahid s/o Syed Shahid Hussain as follows: That you alongwith absconding accused Maqbool Ahmed Wasim Malik s/o 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 M/s JA.
Enterprises of which you represented yourself to be the proprietor, aid on the basis of forged documents relating to properties Nos. R- 393 and R-294, Block 9, Federal B Area, Karachi, which documents wore 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 Brinks-Stock 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.4,90,1)00/- and committed offence punishable under sections 420, 468 and 471, PPC, read with section 34, PPC, and within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the aforesaid charge.
Sd/- (Z.A. 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. Mohammad Khan, ACM 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 Wasim 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. Lt 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. Sakhawat Khan of Lahore. Here, however, there was a slip as the medical coertificate, instead of mentioning any injury on the body, merely staled that the appellant was suffering from peptic ulcer. Learned trial Judge was therefore skeptical of the certificate and summoned the doctor alongwilh relevant record. On the next dale 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 arid 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 NBWs of the appellant. On 16-6-19X8 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 out-door patient or as an indoor patient. And "on- the-spot inquiries" conducted by FIA 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. In 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 Mohammad Assistant Collector of Customs (recorded on 31-8-1988) and Mr. Mohammad Tasleem Akhtar Treasury Officer of Customs Department (partly recorded on 31.8.1988 and partly on 4-9-1988). According to Mr. Fateh Mohammad 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 lakhs, lt may be noted that the M/s 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.173/90 is pending against the appellant and is being disposed of today b$ a separate judgment. There is also on record an application of Mr. Sarmad Osmani Advocate on behalf of Fong Kong Bank Limited (on the file of case No.14/1987) that Hong Kong Bank was also defrauded by the appellant is 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 46S PPC but found him guilty under section 420 PPC and section 471 PPC and sentenced him as follows: "1.' Under section 420 PPC to R.I. For five years and a fine of Rs.5 lakhs or further R.1, for 18 months in lieu of fine.
2. Under section 471 PPC 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 'brother, 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. Al 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, hopeless by 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 Misc. Application No.36/89 earlier filed by the appellant for "Leave to Appeal before Hon'able High Court" through late Mohammad 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 (MA 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. PW-1 the complainant (Mr. Mohammad 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. PW-2 is Mr Abdul Razak, General Manager of M/s Brigstocke Eduljee & Co., the Shipping Agents who had allegedly issued the bill of ladings Ex.3/A, 3/A-l, 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 had been shown as the sole proprietor of the firm M/s J.A. Enterprises. PW-4 Syed Moham mad Razi advocate stated that he knew both the accused and on 23- 9-1986 met them in the office of Sub-Registrar 'T'-3 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 bonafides 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. PW-5 Jalal Ahmed Ansari stated that "House No.R- 298/294, Block- 9, Federal B Area Karachi was purchased by his mother Aman Khatoon from Raja Banaras in 1%8 (This is the house which was allegedly pledged by Raja Banaras with the bank on 23-9-1989 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 Ex.6/D. He identified the appellant and said he knew him and co-accused Maqbool Ahmed 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 hi^ office adjacent to his office and one day he (witness Ansari) asked Maqbool Ahmed Waseem whether he knew anyone in the Registrar 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 word 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 Ex.6-E. The witness further said that after keeping the documents with him for about six months, Maqbool 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 Waseem when in May 1987 the bank people and the FIA made inquiries from him. He produced a notice dated 11-6-1987 Ex.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. Mohammad Asghar, claiming to be the landlord of Mr Ansari and demanding rent. The notice was replied by the witness vide Ex.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. PW-5 Mohammad 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. PW-7 Ghulam Nabi Jokhyo is Sub-Registrar who was incharge of T-7 Division at the relevant time and he said that lease-deed Ex.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 PW-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 M/s 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 M/s Kamal Associates and Mr. Wazir A.I G. Hussain was examined to show that this certificate was bogus and forged as M/s Kamal Associates had ceased to have their officer 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 Ex.9/A. PW-8 Khaliquz 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 clevery 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 DW-1 Mustufa 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 was stated 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/-. 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 DW-1 Mustufa 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 PW-3 Mr. Mohammad 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 vouchsafed to its truthfulness and voluntary nature. Relevant question and answer are reproduced below: Q. Your attention is invited to the evidence of Magistrate PW. Mohammad Khan who has testified that he had recorded your confession, Ex.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 Ex.13-A is dated 22.6.1987 which clearly shows that immediately 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 (DW-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 mis-appropriated 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 PW-5 Mr. Ansari and his brothers and thus obtained a loan of Rs.4,90,000/- from the bank. He produced a forged pest order before the bank and rendered 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 nonexistent person as surety. He managed to procure bogus and forged medical certificates from Lahore. He fraudulently proclaimed himself dead. The charges under sections 420/471 PPC against the appellant have been sufficiently established. 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 PPC 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 PPC. 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. {{MIASARRANGED TEXT}} As such sentence, of Five years under section 471 PPC 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 PPC from five years R.I. To three years R.I. And, resultantly, in view of section 65 PPC, 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 PPC is modified to this extent.