JAWAD HASSAN, J.---Through the instant petition, the Petitioner, Ghulam Qadir Khan, has sought suspension of his sentence passed against him as five (5) years Rigorous Imprisonment (R.I.) and fine of Rs.2,320,000/- and forfeiture of his all properties by the Accountability Court No. HI, Rawalpindi vide Judgment dated 31.05.2017 in Reference No.5 of 2007 in respect of offences under Section 9(iii), (iv), (ix) & (x), sections 10 and 31-A of the National Accountability Ordinance, 1999 (the "Ordinance").
2. Succinctly, the case of the prosecution is that the Petitioner, Ghulam Qadir Khan, was running the business of Hajj and Umra services by the name and style as Messrs Carvan Al-Rahmah. On 24.02.2003 Brig. Iftikhar Ahmad Khan filed a complaint that the Petitioner cheated the pilgrims of Hajj in the year 2003 by deceitfully collecting money from 105 Hujjaj (Pilgrims) on account of provision of accommodation and other services during Hajj at Makkah and Medina but he did not provide any such services. Investigation was conducted and on the basis of material and evidence collected, a Reference No.5/2007 was prepared and filed to the Court concerned within the meaning of section 18 of the Ordinance.
3. During the course of trial the Petitioner and co-accused did not appear before the Trial Court, as such they were declared Proclaimed Offenders by the Accountability Court No.III, Rawalpindi vide order dated 19.03.2007. Subsequently, in pursuance of arrest of the Petitioner on 25.07.2016 and co- accused, supplementary Reference under sections 18(g) and 31-A read with other enabling provisions of the Ordinance was filed. The Trial Court ultimately convicted and sentenced the Petitioner for five (5) years Rigorous Imprisonment (R.I.) and fine of Rs.2,320,000/- and forfeiture of his all properties.
4. In pursuance of order of this Court dated 19.06.2017, the Respondent No.1 filed report and para wise comments.
5. The learned counsel for the Petitioner has argued that there is glaring contradiction in the statements of the PWs, as such the prosecution story is tainted with reasonable doubt and the benefit of doubt always goes in favour of the accused/Petitioner being favorite child of prosecution; that the Reference/case against the Petitioner has been filed in connivance with the complainant and one Abdul Hameed Siddique, partner of the Petitioner, as such based on ulterior motive and mala fide; that there is no proof of payment by the affectees to the Petitioner and that too the alleged receipt of total amount does not bear .the signature of the Petitioner; that the sentence of the Petitioner is liable to be suspended because the case of the Petitioner is of short sentence and also the Petitioner is a sick aged man; that the Petitioner is previous non-record holder and under the law being first offender deserves to be treated with leniency; that the co- accused namely Ghulam Farid Khan has already been acquitted by the Trial Court vide judgment dated 02.07.2016, therefore, the Petitioner is liable to be extended benefit of doubt; that a civil dispute has been coloured into criminal one and the allegations levelled against the Petitioner do not come within the ambit of the Ordinance. The learned counsel for the Petitioner has placed reliance on the case titled Zahid Ali Noor v. NAB and others (2017 PCr.LJ 147), Rauf Bakhsh Kadri v.
The State and others (2003 M LD 777 [Karachi]), Rafiq Haji Usman v. Chairman NAB and another (2015 SCM R 1575) and Abdul Aziz Memon and others v. The State and others (PLD 2013 Supreme Court 594).
6. On the contrary, learned Special Prosecutor for NAB has vehemently controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the grounds that the Petitioner has cheated as many as 105 Pilgrims; that the Petitioner remained absconder twice, as such does not deserve any leniency; that the arguments of the learned counsel for the Petitioner go into the deeper appreciation of the evidence which is not warranted at this stage; that there is sufficient incriminating material available on record to connect the Petitioner with the commission of alleged offences.
7. We have heard the arguments advanced by both the sides and perused the available record minutely.
8. The record reveals that the Petitioner firstly entered into a Plea Bargain Agreement on 04.07.2005 with the NAB Authorities but absconded later on. Subsequently, when the Reference was filed in the Court on 17.07.2006, the Petitioner did not appear there and was declared Proclaimed Offender by the Accountability Court No.III, Rawalpindi vide order dated 19.03.2007. He was arrested on 25.07.2016 and sent to judicial lock up which resulted into filing of supplementary Reference. Such a long unexplained abscondance of the Petitioner is a corroboratory factor, which cannot be ignored as the same prima facie has indicated the guilt of the Petitioner and he is not entitled to be enlarged on bail merely because his co-accused had been acquitted in the case. The conduct of the Petitioner does not deserve him to be treated with leniency. Furthermore, entering the Petitioner into Plea Bargain Agreement himself with the Respondent No.1 tantamounts to admission of commission of allegations levelled against him. Reliance in this regard can be placed on the case titled Fazal-e-Hadi v. National Accountability Bureau Sindh through Director General Sindh and others (2008 PCr.LJ 171) wherein the Hon'ble Division Bench of Sindh High Court observed as follows:- "Possession of tainted money with the accused prima facie, did not need any further inquiry. The delayed statement of the complainant had not weakened the prosecution case. The accused had admitted receiving of money through his plea of bargain. The deeper appreciation of evidence could not be made at this stage and the grounds taken by accused could be thrashed out before the Trial Court. The accused was the Assistant Director in the National Accountability Bureau and was conducting an inquiry against the corrupt people-Prima facie case had been made out against the accused as he himself had offered for plea of bargaining and had filed an affidavit to pay more, amount than he had demanded and received from the complainant and others. The accused in his own handwriting had admitted all the mistakes committed by him and even requested the D.G. NAB to pardon him. The bail was declined to accused in circumstances. The Constitutional petition was dismissed accordingly."
9. Further, in the case titled Manzoor Ahmed v. The State (PLD 2003 Kar. 197), it was held in para 16 as under:-- "16. A perusal and tentative assessme nt of the foregoing evidence on the record would show that the learned trial Court has not committed any grave error or failed to take into consideration the evidence itself while coming to the conclusion that the appellant was guilty of the crime with which he was charged and thereupon convicting him per the impugned judgment. It is settled law that at the bail stage only tentative assessment of the evidence on the record is to be made whereas details are to be thrashed out at the regular hearing of the matter. Consequently, for the foregoing reasons we see no force in this application, which is dismissed as such. However, to be fair to the appellant/accused, we would direct that the matter be listed for regular hearing in November, 2002. Needless to say the observation recorded herein shall not be considered at such hearing as they are tentative in nature."
10. Similarly, in the case of Islam-ud-Din Shaikh v. The State (PLD 2003 Karachi 266), the Honorable Court dismissed the petition for suspension of sentence and bail, even though the accused deserved medical treatment. It was held in para 11 of the case that:-- " ... Indeed we do not find a reason to place the case of the applicant on the same pedestal as that of an under-trial prisoner, whose detention may likely continue for an indefinite period without trial being concluded. Even otherwise the shield of presumption of innocence ceases to exist after conviction. On humanitarian grounds however the applicant deserves medical treatment which is not available to dim at Sukkur and Larkana therefore, while rejecting the bail plea it is directed that the applicant shall be shifted to Karachi where he may be allowed facility of Coronary Angiography and other medical treatment through a doctor of his choice and in that behalf the jail authorities should no create any hurdle in the process of medical consultation...."
(emphasis added)
11. Moreover, the arguments advanced by the learned counsel for the Petitioner amount to touching the merits of the case which exercise cannot be relied upon at this bail stage and only tentative assessm ent is required to be done. The Trial Court after assessing and evaluating the evidence produced by the prosecution witnesses has found the case, against the Petitioner to have been proved beyond any shadow of reasonable doubt.
12. The case laws relied upon by the learned counsel for the Petitioner are distinguishable from the case in hand and do not support him as each and every case has its own facts and circumstance.
In the case titled Zahid All Noor v. NAB and others (2017 PCr.LJ 147), the trial was not concluded and the accused was granted bail on the principle that if a trial of case is not concluded within 30 days from date of submission of challan, accused would automatically become entitled to grant of bail.
However, in the present case, the trial has been concluded and detailed judgment has been passed against the Petitioner. Further, the facts and circumstances on which the decision is passed in the case of Rauf Bakhsh Kadri v. The State and others (2003 M LD 777 [Karachi]) are not relevant to present case at hand. In the case of Rafiq Haji Usman v. Chairman NAB and another (2015 SCM R 1575), the accused was released on bail because the case of further inquiry was made out and did not fall strictly under the preview of the provisions of law. The last case cited by the counsel for the Petitioner, Abdul Aziz Memon and others v. The State and others (PLD 2013 Supreme Court 594), is also not relevant to the present case and enunciates a different principle of law as compared to the present case.
13. The Petitioner has failed to establish any malice oron the part of the complainant for false implication of the Petitioner in the present case. Prima facie there is sufficient incriminating material available on record to connect the Petitioner with the commission of alleged offences. No solid ground or reason for suspension of sentence has been made out by the Petitioner.
14. On the touchstone of the above reasons, we are not inclined to allow the instant petition and enlarge the petitioner on bail, consequently the petition stands dismissed.