The appellant alongwith Muhammad Irfan son of Faqir Muhammad, Syed Mudassar Shah son of Mahmood Shah and Muhammad Ali Syed son of Abdul Qayum Shah were tried as case No,23 of 1997 by Judge, Special Court (Offences in respect of Banks), N.-W.F.P. Peshawar in case F.I.R. No,12 of 1991 under sections 409, 419, 420, 468 and 471, P.P.C. read with section 5(2) of the Prevention of Corruption Act,' 1947. At the conclusion of the trial the appellant was convicted and sentenced to two years R.I. with a fine of Rs,50,000 under section 420, P.P.C. in default of payment a further imprisonment for one year. He was also found guilty and convicted under section 468, P.P.C. for a period of 4 years R.I. with a fine of Rs,50,000 and in default whereof a further imprisonment of one year. He was also sentenced to two years R.I. with a fine of Rs,50,000 under section 471, P.P.C. or in default to undergo one year imprisonment. He was exnded the concession of section 382-B, Cr.P.C. the charge under sections 409, 419 and 109, P.P.C. was found proof against him. All other accused facing trial were granted acquittal.
2. On the written complaint of Irfan, who was subsequently arrayed as accused, addressed to the Deputy Commissioner, Mansehra, complaining that the appellant had obtained a loan from the H.B.F.C. in his name and the name of his brother Muhammad Sharif on the pretext of helping him in funding from the Bait-ul-Mal. After getting his thumb-impression on certain documents and the identity cards of him and his brother fraudulently obtained Rs,80,000 against their house and the H.B.F.C. has issued him notice for recovery of the loan. The appellant was charged for cheating, an enquiry was conducted by Special Forest Magistrate, Mansehra, who submitted his report holding the appellant and Muhammad Irfan connected with the commission of offence.. The case was registered against the appellant and others on the basis of said enquiry report.
3. The prosecution produced 17 witnesses at the trial who were accordingly examined in the witness-box. They include the marginal witnesses of recovery memo. Exh. P.W.1/1 and Exh.P.W. 1/2 whereby the documents marked as Exh.P.W. 1/1-A, Exh.P.W. 1/1-B and Exh. P.W. 1/2-A to Exh.P.W.1' /2-F were taken into possesion. The marginal witnesses of recovery memos. Exh. P.W.2/1, Exh. P.W.2/2 and Exh.P.W. 2/3 were also examined. Patwaris Halqa Shanay and Dhudyal Maiakal were also examined who deposed that in the year 1991 he accompanied the Enquiry Officer to the spot where he pointed out Khasra No,6160/2226/2 with the help of Aks Shajra Kishtwar. There was a constructed house on the suit land owned by Muhammad Irfan and Muhammad Sharif brothers-inter se. While the said Muhammad Sharif, Habib-ur-Rehman and Muhammad Hanif were residing in it. The house was entered in the Khasra Girdawari for the year 1987 by Muhammad Irfan. Hand- writing/Finger Print Examiner was also examined, who deposed that thumb-impressions marked Q-1 to Q-38 on Exh.P.W.1/2-A to Exh. P.W. 1/2-C Exh.P.W. 2/2-F, Exh. P.W. 2/2-G, Exh.P.W. 2/2-L, Exh.
P.W.4/1, Exh. P.W. 2/1-B, Exh. P.W. 2/R, Exh. P.W. 1/2-D, Exh.P.W. 1/2-E, sent to him with specimen thumb- impressions of Muhammad Irfan and the signatures marked as Q-54 to Q-83 with the specimen signatures of Muhammad Sharif on a sheet mark as S-12 to S-21 Exh. P.W. 4/6 and his signatures marked R-1 and R-2 on the identity card of Muhammad Sharif, Exh.P.W. 4/7 and Exh. P.W. 1/1-A, which were examined and submitted his report Exh.P.W. 4/8. Abdul Shakoor who investigated partly the matter was also examined, who exhibited the letter from Deputy Commissioner dated 20-10- 1991 as Exh. P.W. 7/2 and the subsequent registered F.I.R. as Exh. P.W. 7/1. He arrested the appellant in the case and obtained his specimen signatures in presence of the Magistrate marked 'as S-4 to S- 12 through Exh. P.W. 1/3, Various documents were also taken into possession through recovery memo. Exh. P.W. 2/2. The record of H.B.F.C. was also taken into possession through Exh. P.W.1/2 in the presence of marginal witnesses. Muhammad Ali the acquitted accused was also arrested in the case on 13-11-1999. After obtaining the specimen signatures and thumb-impressions of appellant and Muhammad Irfan were sent to Technical Director, F.I.A./H.Q., Islamabad alongwith the disputed signatures and thumb-impression for comparison and report. Muhammad Sharif was examined under sections 161 and 164, Cr.P.C. and his specimen signatures were obtained on Exh. P.W.416 marked S-13 to S-21. The report of expert Exh. P.W. 4/4 was received on 9-2-1992 while the report regarding comparison of the specimen signatures and signatures on the suspected documents of Muhammad Sharif were also sent for expert opinion which was reported as Exh. P.W. 415. The specimen signatures of Muhammad Sharif, his signatures on disputed documents and his admitted signatures were also sent for expert opinion separately and the report Exh.P.W. 4/8 in this regard was revived. The charge of embezzlement was found not substantiated against acquitted accused Muhammad Ali Syed. Muhammad Irfan had gone in hidings and a warrant under section 204, Cr.P.C. was issued against him, was also proved through Abdul Nazir. One Muhammad Zahoor, Additional Wasil Baqinawees serving with the appellant was also examined, who deposed that on the direction of the appellant he signed the deed in favour of H.B.F.C. as an identifier of Muhammad Irfan and Muhammad Sharif before Tehsildar. Muhammad Sharif the brother of Muhammad Irfan also appeared in the witness-box deposing that he and Muhammad Irfan reside in the same house and he never applied to the H.B.F.C. for loan facility and never signed any documents in this regard. One Jehanzeb, Senior Assistant in H.B.F.C. appeared in the witness-box. He deposed that in loan case No,HFS-MNA. 3130 and 3131 he handed over the deeds of assignments and cheques to Sub-Registrar, who after verifying the documents behest of appellant handed over the cheques to Irfan who used to visit the H.B.F.C. office alongwith the appellant. The Magistrate arid Marginal witnesses of the deed whereby specimen signatures of Aurangzeb and Muhammad Irfan and Muhammad Sharif were obtained were also examined. The Forest Magistrate who conducted the initial enquiry and Muhammad Farooq in whose presence the assignment (sic) signed and the cheques were handed over was also examined.
4. We heard the learned counsel for the appellant and Deputy Advocate-General for the State. Also perused the record minutely.
5. The prosecution through 17 witnesses has established the guilt of appellant. Since case of acquitted accused is not before us, therefore, without commenting upon them would restrict ourselves to the case against the appellant. The signatures of Muhammad Sharif on the documents produced before H.B.F.C., Sub-Registrar and the Corporation were compared with the routine signatures of Muhammad Sharif and his specimen signatures taken in the Court were found not tallying while the routine signatures and specimen signatures were found identical.
Muhammad Zahur who is working in the office of appellant and as his subordinate has stated that at the instance of appellant he signed the deed before the Sub-Register and has denied the presence of Muhammad Sharif at the relevant time. He was also not known to the witness although in his deposition Irfan used to come to the office with appellant and it was disclosed by the appellant that the two brothers Muhammad Irfan and Muhammad Sharif are his tenants. One Jehanzeb an employee of the H.B.F.C. appeared as P. W.13 has also expressed his ignorance about Muhammad Sharif at the time of attestation of mortgage-deed in the office of Sub-Registrar and has specifically deposed that appellant was the persons who verified (sic). The mortgage-deed Exh. P.W. 2/1-A and Exh. P.W. 2/1-B bears the signatures of appellant and his signatures marked Q- 52 and Q-41-42 were found tallying with his specimen signatures. The loan form submitted by Muhammad Sharif as Exh. P.W. 1/2-D was also verified by the appellant and his signatures marked Q-10 was also found identical with his specimen signatures. Muhammad Irfan and Muhammad Sharif who applied opening of P.L.C. accounts in the Allied Bank Branch Mansehra Exh. P.W. 2/2-L and Exh. P.W. 2/2-M were accepted on ;the verification and introduction of the appellant, his signatures marked as Q-43-44 and Q-50-51 were also found identical with his specimen signatures. The amount in two instalments of Rs,16,000 and Rs,24,000 by Muhammad Irfan and Muhammad Sharif were deposited in their P.L.C. Accounts Nos,4089 and 4090 respectively and subsequently through cheques Exh.P.W.2/2-F dated 30-10-1989 for an amount of Rs,16,000 and Exh.
P.W.2/2-G dated 19-12-1989 for an amount of Rs,24,000 were drawn by Muhammad Irfan. While through cheque Exh. P.W. 2/2-E dated 28-10-1989 for an amount of Rs,16,000 and through cheque Exh. P.W.2/2-K dated 19-12-1989 for an amount of Rs,24,000 were allegedly drawn by Muhammad Sharif but his signatures thereon marked Q-71 to Q-76 were found not tallying with his specimen and routine signatures. Muhammad Sharif while appearing as P.W. 4 has denied any signatures on either of the document starting from the submission of application to. the H.B.F.C. till the withdrawal of sanctioned loan through cheques noted above and though he was cross-examined but his deposition could not be shattered by the appellant. Above all. Aurangzeb in his statement conceded the withdrawal of Rs,24,000 in the name of Muhammad Sharif and allegedly returned the same but he has not explained that how he succeeded in drawing the said amount and in whose presence he returned the same to Muhammad Sharif.
6. In the aforesaid circumstances it is abundantly clear that appellant remained in the picture from the very start and even if fraud was played by Irfan acquitted accused with the Corporation the same was materialized only with the connivance of appellant. Irfan himself being an illiterate person and has thumb-impressed all the documents produced at the trial and his thumb- impression was found tallying with his specimen thumb-impression but the appellant liability of committing fraud in collusion with Irfan have also been successfully established and even from his own admission.
7. Thus we are satisfied that the appellant is guilty of the offence but as to the quantum of sentence we do not agree with the Trial Court for awarding the sentences mentioned in the impugned judgment. The appellant who has committed the fraud- at least for receiving a benefit of Rs,24,000 the justice demands reduction in sentence. He remained under custody for some period during investigation and after the impugned judgment on 2-6-2001 the petitioner is serving the sentence. In our view the sentence already undergone by the appellant is found sufficient for his reformation. The fine imposed on the appellant is also reduced to 1/3rd or in default whereof he shall undergo one year S.I. Rest of the impugned judgment is upheld.
8. We maintain the conviction of the appellant but reduce his sentence to the period already undergone and the fine imposed under sections 420, 468 and 471, P.P.C. as Rs,50,000 under each section of law is reduced to Rs, 16,666.67 under each section of law which comes to Rs,50,000 in total or in default one the petitioner shall undergo one year S.I. for the entire fine. With these modifications this appeal is hereby dismissed.