' RAHMAT HUSSAIN JAFFERI, J.-On 18-1-2006, the petitioner filed the Constitution Petition with the following prayers:- "(a) Declare that the order dated 3-1-2006 passed by the respondent No,2 dismissing the petitioner's application under[1] section 265-K, Cr.P.C. In Reference No,4 of 2005 "State v. Begum Salma Ahmed" and Order dated 14-11-2005 are illegal, without any legal, effect, without any lawful authority and null and void.
(b) Set aside the order dated 3-1-2005 and 14-11-2005 passed by the respondent No,2 dismissing petitioner's applications under section 265-K, Cr.P.C. In Reference No,4 of 2005, "State v. Begum Salma Ahmed" and application dated 10-10-2005.
(c) Quash Reference No,4 of 2005 "State v. Begum Salma Ahmed" pending before the Accountability Court No,IV, Karachi and acquit the petitioner forthwith.
(d) Suspend/stay the proceedings in reference No,4 of 2005 "State v. Begum Salma Ahmed" pending before the Accountability Court No, IV,- Karachi.
(e) Pass any other order deemed fit and proper in the circumstances of the case by this Honourable Court.
(f) Grant costs of the Petition. "
2. Brief facts giving rise to the present petition are that the Chairman, NAB filed the reference alleging therein that the petitioner the then MNA and Chairman, Pakistan Association of Women Entrepreneurs (PAWE) got allotted an amenity Plot No,ST-25-B, Block-4, KDA, Scheme No,5 Karachi in the name of PAWE. The plot was to be used for Women Complex only and not for residential or any other purpose. The construction on the plot was to be completed within two years from the date of taking over the possession. It is further alleged that the Government of Sindh allocated a fund, of Rs,1.5 million under the Prime Minister's Special Development Program for MNAs/Senators for the year 1986-87. The petitioner managed funds from Export Promotion Bureau (EPB) amounting to Rs, 13.30 million' to complete the project of Fashion Design Technology Center (FDTC) for Women.
After sanctioning the amount the EPB issued two cheques of Rs,77,00,000 and 418.50,00,000 in favour of M/S PAWE. The cheques were received by the petitioner and she deposited them in Current Account No, 1748.6 of M/S. PAWE maintained with National Bank of Pakistan Clifton Branch, Karachi. The petitioner withdrew the entire amount of Rs, 13.30 million from the bank during the period from 25-7-1994 to 29-7-1995 through various cheques. It is further alleged that from that amount the petitioner spent Rs,29,90,467 on the construction but the balance amount of Rs, 11,592,533 was not accounted for as she misappropriated the same. Therefore, the Chairman NAB after getting the matter investigated by FIA filed the reference. The petitioner moved an application under section 265-K, Cr.P.C. Before the trial Court but the same was dismissed, hence the present petition.
3. The learned Advocate for the petitioner has stated that the petitioner was MNA from the years 1985 to 1989, as such, when the amount was sanctioned the petitioner was not holding a public office therefore, the NAB Ordinance is not applicable in her case; that she received the amount of Rs, 13.30 million from EPB; that the amount was withdrawn; that the audit was conducted in which no discrepancy was found but the prosecution suppressed the audit report; that the petitioner moved an application before the trial Court for bringing the audit report on record which was allowed and the prosecution was compelled to produce the audit report which they did but the notes of the account as on 30-6-1995 were not produced in spite of service of notice under Article 77 of the Qanun-e-Shahadat Order, 1984, therefore, the petitioner produced the photostat copies of notes of account, in which there was no misappropriation of amount. He has further stated that the dispute, if any, is of civil nature, therefore, she cannot be prosecuted in criminal proceedings; that the witnesses in their 161, Cr.P.C. Statements have not implicated the petitioner and referred to the statement of P.W. Muhammad Mohsan, copy of which has been filed during the course of arguments; that the ingredients of offence are not attracted and that there is no probability of the conviction of the petitioner, therefore, he has requested for quashing the proceedings pending before the Accountability Court No,II, Karachi.
4. Conversely the learned ADPGA has stated that the amount was sanctioned to the petitioner for completing the project of Fashion Design Technology Center for women; that the amount was received by her but she did not utilize the amount properly as the construction was not completed within a period two years; that the petitioner has failed to account for the balance amount of Rs, 11,592,533 which she was required to do; that the audit report was in respect of expenditure and not the balance amount, therefore, the said report is not helpful to the petitioner at this stage; that the notes of accounts are required to be proved in accordance with law and that the said stage has not yet reached, therefore, the said notes cannot be considered at this stage. He has further stated that the NAB Ordinance is applicable in the case of the petitioner as she has committed the offence of misappropriation of amount entrusted to her to be utilized in a particular manner, therefore, he has requested for the dismissal of the petition.
5. We have given due consideration to the arguments, gone through the material available on the record and found that the petitioner has admitted the sanctioning of amount of Rs,13.30 million by EPB in favour of PAWE, which she received in the shape of two cheques dated 12-6-1994 amounting to Rs,7.7 million and 13-6-1994 amounting to Rs,5.6 million which she deposited in the account of M/S PAWE. The petitioner has also admitted that she withdrew the entire amount during 'the period from 25-7-1994 to 30-7-1995, it is also admitted position that the construction on the project of Fashion Design Technology Center (FDIC) for Women was not completed within the required period two years.
6. The prosecution has alleged that the amount spent by the petitioner on the project was 29,90,467 and the balance amount of Rs,11,592,533 has not been accounted for. As the petitioner has admitted the entire case of the prosecution except the misappropriation of amount then she is required to account for the balance amount. For that she has relied upon the audit report. As regards the audit report the case of the prosecution is that it relates to the expenditure made by the petitioner whereas the case of the petitioner is that it is in respect of entire amount. For that the petitioner has relied upon the notes of audit. The breakup of the said notes appearing at page 133 is as under.
LiabilityRs. Assets Rs Export 13,300,000 Cess Fund Fixed 9,301,951 capital expenditure Unallocated 2,221,969 capital expenditure Loan to 400,000 PAWE Cash in 1,372,591 hand Cash in 3,489 Bank 13,300,000 13,300,000
7. From this report it also appears that the amount of Rs, 13,72,591 was in hand with the petitioner and an amount of Rs,3,489 was lying in the Bank. The huge amount in hand, which was required to be deposited in account of PA WE clearly demonstrates that the. Amount was withdrawn from the Bank, to be utilized for some purpose otherwise there was no need for withdrawing such large amount. It further appears that if the amount was to be utilized for the project then the amount could have withdrawn as per need or expenditure on the project, but that has not, been done. The petitioner has not produced or pointed out any document showing the amount in hand deposited in the PAWE Bank Account. Even otherwise the PAWE was deprived of using the said amount for an unexplained period. As such she is required to account for the said amount which she, had not spent as per audit report. Failure to account for the amount admitted to have been received by the petitioner is generally regarded to be strong circumstances against the accused/ petitioner.
However, this audit report has not yet been produced in evidence which is required to be proved in accordance with law before relying upon such notes, therefore, it will be premature stage to comment upon this report because it might prejudice the case of the parties. The audit report and notes of account are required to be assessed and appreciated in accordance with law by the trial Court to do the same. This Court at this stage cannot appreciate or assess the evidence but the tentative assessm ent can be made from the evidence available on the record. Therefore, the observation made by this Court on the audit report is of tentative nature with shall not come in the way of trial Court while deciding the case.
8. As regards the statement of P.W. Muhammad Mohsin, the learned Advocate for the petitioner has argued that he stated that no fix time was fixed for utilizing the amount. During the course of arguments the learned advocate for the petitioner has referred to the agreement executed between the petitioner and EPB. Clause 2 of the agreement reads as under:- ' "The phase two shall include purchase of land and construction of premises within a period of one to two years during which period residential machinery and equipment may also be purchased acquired as conation etc."
9. From the above agreement it is clear that the period of one to two years has been fixed in the agreement, as such, the statement of P.W. Moshin is required to be scrutinized at the time of trial.
10. The learned Advocate for the petitioner emphasized that the petitioner was not holding a public office at the time of sanction or release of the amount as she was MNA in the year 1985 to 1988 and the amount was released in the year 1994, therefore, the NAB Ordinance *is not applicable in the case.. In this connection it is pointed out that the NAB Ordinance is applicable to all citizens of Pakistan and persons who are or have been in the service of Pakistan as provided under section 4 of the NAB Ordinance that reads as under:- "4. Application. It is extends to the whole of Pakistan and shall apply to all citizens of Pakistan, and persons who are or have been in the service of Pakistan wherever they may be, including areas which are part of Federally and Provincially Administered Tribal Areas."
11. Furthermore the offence as defined under section 9 of NAB Ordinance is in respect of offence of corruption and corrupt practices if the same are committed by holder of a public office or any other person. Section 9(a) of the NAB Ordinance reads as under: ~ "9. Corruption and Corrupt Practices.-(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices."
12. If both sections are read together, then there will be no hesitation in holding that the NAB Ordinance is applicable to the applicant, who is coming within the ambit of "any other person" appearing in section 9(a) read with section 4 of NAB Ordinance.
13. Learned Advocate for the petitioner has further argued that the ingredients of misappropriation of amount as defined under section 9(a)(iii) of the NAB Ordinance are not. Attracted. In this connection the admitted position is that Rs, 13.30 million were entrusted to the petitioner to be utilized in a particular manner within a specified period but the same has not been utilized. Out of which some amount has been utilized and the balance amount is with the period, therefore, the petitioner is required to account for the said amount but apparently she has not so far accounted for the said amount. The Hon'ble Supreme Court of Pakistan in the case of The State v. Abu Raza (PLD 1959 SC 309) has observed that it is not the duty of the prosecution to prove that the accused converted the property to his own use; it is sufficient if the Government was deprived of the use of the money for an unexplained period, it being presumed in such a case that accused had applied the money to his personal use. Even otherwise the deposit of amount subsequently or-during the trial will not absolve the accused from his criminal liability. In the present case, the balance of amount is with the petitioner. She did not utilize the said amount for the purpose it was entrusted to her and within required time nor she accounted for the same, therefore, it seems that the ingredients of section 9(a)(iii) of the NAB Ordinance are attracted in the present peculiar circumstances of the case.
14. After considering the material available on the record we are of the considered view that there is no illegality or irregularity in the impugned order which does not required any interference.
15. Above are the reasons of our short order dated 14-2-2006 by which we had dismissed the petition.