GOJAR KHAN Versus NATIONAL ACCOUNTABILITY BUREAU (NAB)
ALI BAIG, J.--- This single judgment shall dispose of the instant writ petition bearing W.P. No. 2/2019 filed by the convict/petitioner namely Gujar Khan son of Khuda Dad and writ petition bearing W.P. No-10/2019 filed by the convict/petitioner namely Muhammad Ali Yougvi as both the aforesaid writ petitions arise out of one and same judgment dated 31-12-2018, passed by the learned Judge Accountability Court Gilgit-Baltistan, whereby the learned trial court has convicted the petitioners/ convicts above named and sentenced them rigorous imprisonment for five years with fine under section 10 of NAB Ordinance, 1999.
2. Through the writ petitions filed by the petitioners under Article 86(2) of Gilgit-Baltistan Order, 2018 read with sections 426 and 497 Cr.P.C. and enabling Articles of Constitution of Islamic Republic of Pakistan 1973, the petitioners / convicts have sought suspension of their respective sentences handed down by the learned Accountability Court Gilgit-Baltistan, vide judgment dated 31-12-2018.
3. Brief facts leading to the conviction and sentence of petitioner namely Gujar Khan (here-in-after referred to as) petitioner No.1 and Muhammad Ali Yougvi (here-in-after referred to as) petitioner No.2 are that the complainant through Director General NAB Rawalpindi filed a Reference against the petitioners/convicts under section 18(g) of National Accountability Ordinance, 1999 on 17-5-2018 before the learned Accountability Court Gilgit-Baltistan alleging therein and that the petitioners Nos.2 and 1 being holder of Public Offices as Secretary Excise and Taxation G.B and Section Officer Excise and Taxation respectively have misused their authority and made illegal appointments in the said Department in violation of service rules and codal formalities. Resultantly, National Exchequer has suffered a loss of Rs.3137255/-.
4. On receipt of the aforesaid reference, the learned trial court after fulfilling the requisite proceedings framed charge against the petitioners/convicts on 13-02-2017, to which the petitioners pleaded not guilty and claimed trial. Accordingly, the learned trial court summoned the PWs. In order to prove its case the prosecution produced/examined 20 witnesses in the trial court. Thereafter, the learned trial court examined the petitioners/convicts under section 342, Cr.P.C. on 28-11-2018. On conclusion of trial the learned trial court after hearing final arguments on behalf of both the parties has convicted the petitioners and handed down the aforesaid convictions vide the aforesaid judgment. The appellants/petitioners have also challenged the judgment passed by the learned trial court through criminal appeals before this court, which are pending adjudication in this court. The petitioners/convicts besides filing of regular appeals against their convictions/sentences have also filed the instant writ petitions for suspension of their convictions and for grant of bail.
5. The learned counsel appearing on behalf of the petitioners/convicts contended that the convictions and sentences handed down by the learned trial court are prima facie not sustainable in the eye of law as legal defects and lacunas float on the surface of judgment dated 31-12-2018 passed by the learned trial court. The learned counsel for the petitioners/convicts further argued that no direct evidence is available against the convicts/petitioners on the record of the case and the learned trial court has passed the impugned judgment on the basis of presumptions and conjectures, as such the judgment dated 31-12-2018 passed by the learned trial court is perverse, erroneous and based on wrong evaluation of evidence on record, as such the impugned judgment is not maintainable. The learned counsel for the petitioners/ convicts further argued that the learned trial court has awarded five years imprisonment to the petitioners/convicts which amounts to short sentence and the petitioners/convicts have already undergone in dentetion more than one year period accumulatively, therefore, the petitioners/convicts are entitled for suspension of their sentence and release on bail under the relevant provisions of section 426, Cr.P.C. The counsel for the petitioners/convicts further argued that the petitioner/convict No.2 namely Muhammad Ali Yougvi is an aged retired government servant and is also chronic heart and diabetics patient and the petitioner No.2 required continuous treatment which is not possible in jail. The learned counsel for the petitioner No.1 namely Gujar Khan further argued that it is alleged by the prosecution that the petitioner No.1 has abetted the principal accused/petitioner No.2 by issuing appointment letters to 23 sacked employees and has disappeared the record, but the prosecution has miserably failed to produce a single witness to prove the aforesaid allegations against the petitioner No.1, hence the conviction and sentence awarded to the petitioner/convict No.1 is not maintainable. The learned counsel for the petitioner No.1 further argued that the petitioner No.1 is diabetics patient, therefore, the petitioner No.1 is also entitled to be released on bail on medical ground.
6. On the other hand the learned Special Prosecutor NAB vehemently controverted the arguments advanced by the learned counsel for the petitioners/ convicts and supported the judgment dated 31-12-2018 passed by the learned trial court by contending that the judgment passed by the learned trial court is based on facts and law and well reasoned judgment. The learned Special Prosecutor NAB further argued that the learned trial court has convicted and sentenced the petitioners on the basis of reliable and cogent oral and documentary evidence adduced by the NAB authorities, thus the petitioners are not entitled for concession of bail by suspending their convictions and sentences awarded by the learned trial court.
7. We have heard the learned counsel for the parties at considerable length and perused the record with their able assistance
8. From perusal of record it transpires that the petitioners/convicts have been sentenced to suffer imprisonment for five years each, out of which they have remained in custody for about one year accumulatively. Appeals of the present petitioners/appellants are pending adjudication in this court and keeping in view heavy work load/ backlog of cases, it is obvious that their appeals could not be possibly dispose of in near future. The petitioner No.2 namely Muhammad Ali Yougvi is admittedly heart and diabetics patient and on medical grounds he was also released on bail previously by this court during pendency of trial of his case before the learned trial court.
9. Moreover, from perusal of charge sheet framed against petitioner/convict No.1 namely Gujar Khan by the trial court it appears that no specific role of corruption has been attributed to the petitioner No.1 and he was simply charged that he has assisted/abetted the principal accused Muhammad Ali Yougvi in illegal appointments of 23 officials and there is no direct evidence against the petitioner/convict No.1 namely Gujar Khan on the record of the case.
10. Bare perusal of reasons as recorded by the learned trial court while passing the impugned judgment/convicting the petitioners/convicts of having committed an offence under section 9(a) (xii) read with section 14(a) of NAB Ordinance 1999 and awarding them five years imprisonment/punishment, prima facie shows to be sketchy and un- convincing. Matter requires consideration and examination of the evidence which exercise cannot be undertaken at the time of hearing of arguments on the application filed under section 426, Cr.P.C. as deeper appreciation/appraisal of the evidence is to be avoided. However, the apparent defects in the impugned judgment cannot be ignored.
11. In view of above, we have formed a prima facie tentative view that convictions and sentences handed down by the petitioners may not be ultimately sustainable, therefore, we are inclined to suspend the convictions/sentences awarded to the petitioners/convicts by the learned trial court vide impugned judgment dated 31-12-2018 and petitioners are released on bail.
12. It is, clarified that the observations made here-in-above are tentative in nature, whereas, the appeals of the appellants/convicts shall be decided on its own merits based on evidence available on record.
13. The above are detailed reasons for our short order dated 23-5-2019 which is reproduced as under:--
For the detailed reasons to be recorded later on separate papers we accept the instant petitions by suspending the impugned judgment/order passed by the trial court dated 31-12-2018. Consequently, the petitioners shall be released on post arrest bail subject to their furnishing of bail bonds amounting to Rs.20,00,000/- (rupees twenty lacs) with two local sound sureties each in the like amount to the satisfaction of the Registrar of this Court. The instant petition stands disposed of and ordered accordingly.
14. Certified true copy of this judgment/order be placed on the writ petition bearing No. W.P. 10/2019. File.
SA/89/GB Sentences suspended.