1. ' By this common order, we intend to dispose of two Constitutional Petitions Nos.D-1911 of 2006 and D-2004 of 2006 as facts leading to both these petitions are same.
2. ' Petitioners against whom a case has been registered by NAB on account of misappropriation of Zakat Fund have moved these petitions for enlargement on bail.
3. ' Facts of the case in brief are that on 21-9-2006 after receiving credible information that Zakat allocated to Civil Hospital Karachi was being misappropriated by the members of Health Welfare Committee constituted for the purpose. Investigation was conducted and it revealed that petitioners Dr. Mirza Raza Ali and Dr. Allah Nawaz A. Qazi along with other accused persons as mentioned in the Reference No,21 of 2006 were guilty of misappropriating the Zakat Fund.
4. ' From the perusal of investigation report as placed by the petitioners themselves it reveals that for the proper disposal of Zakat Fund Health Welfare Committee was constituted consisting of following members:--
(1) Capt. (R) Dr. Mirza Raza Ali the then M.S. CHK,... Chairman/ Convener, (13th September, 2003 to 2nd November, 2004).
(2) Dr. Allah Nawaz Qazi, A.M.S. (Zakat) CHK, Member.
5. ' And had 'taken out an exorbitant amount of Rs,3,75,000 from the Zakat Fund.
6. ' It is further alleged that by two fictitious bills of Seema Store for supply of medicines and the indent forms showing the patients to be admitted and operated in Orthopaedic Unit-H of Civil Hospital Karachi an amount of Rs,2,50,000 was misappropriated from the Zakat Fund and cheque of the same was issued in the name of Messrs Seema Store and both these approvals were made under the signature of petitioners Dr. Mirza Raza Ali and Dr. Allah Nawaz A. Qazi. An amount of Rs,3,00,000 and Rs,4,15,279 was also taken out through Cheques Nos.8466568 and 8466571 on the pretext of purchase of medicines for the outdoor patients on plain slips from Seema Store. Again an amount of Rs,3,09,300 was misappropriated by petitioner Dr. Mirza Raza Ali from Zakat Fund in against to certain patients as shown in the investigation report of this file.
7. ' It is also observed that the amount said to had been disbursed in against to each patient was much more than the ceiling amount as settled under the rules to be Rs,2,000 for indoor patient and Rs,1,000 for outdoor patient and that too without approval of Health Welfare Committee.
8. ' Certain statements of prosecution witnesses recorded under section 161, Cr.P.C. Have also been placed on record.
9. ' P.W. Zahid Ali who is serving as Storekeeper in Poor Patient Aid Society Civil Hospital Karachi has deposed that both the petitioners asked him to sign two wards Indents bearing Nos.1154 and 1155 as knee of a patient viz. Wazir Ali were to be replaced and permission thereof would be taken later on.
10. Then Dr. Allah Nawaz A. Qazi did sign on above two ward indents in his presence. Both these indents were for total knee replacement of Rs,99,770 each. It is further stated by him that both these indents along with Istehqaq Certificate and copy of MC were handed over to him by Dr. Mirza Raza Ali for preparation and issuance of cheque. The very witness has further disclosed issuance of cheque from Zakat Fund Cheques Nos.8466569 and 8466570 dated 10-10-2003 each of Rs,99,770 were issued in favour of Seema Store. Cash payment voucher dated 11-10-2003, Istehqaq Certificate and copy of NIC confirms the payment through above cheques. Here this fact also cannot be overlooked that relaxation in ceiling was subject to the approval of HWC, which though is pleaded by petitioner, but no such approval has been placed before Court. Even otherwise petitioner Dr. Allah Nawaz Qazi had put whole responsibility of approval of these indents on petitioner Dr. Mirza Raza Ali, who is totally silent on the issue.
11. ' Apart from it according to petitioner Dr. Mirza Raza Ali in a meeting held on 13-12-2003, decision to purchase medicines in bulk was taken upto 60% of the total allocated amount, but the decision made by Central Zakat Committee as placed on record, is nothing but a simple piece of paper, without mentioning the name of Committee who took the decision, nor signature of members of that so-called Committee is appearing on record. Mere placement of letter of Section Officer dated 17-1-2004 making a reference of meeting of Central Zakat Committee held on 13-12-2003 is not sufficient proof, something more as discussed above is required to disprove the guilt.
12. ' The next witness Muhammad Siddique has also supported the version of first P.W. Zahid Ali and had given details of slips and indents got issued by both these petitioners for the fictitious purchase of medicines and issuance of cheque in the name of Messrs Seema Store. P.W. Abdul Karim and rest of the witnesses namely Zulfiqar Ali, Anisul Qadeer Rajput, Khalid Farooque, Muhammad Aslam Siddiqui and Dr. Muhammad Younus supported the version of prosecution of misappropriation of account from Zakat Fund.
13. ' Conversely learned counsel for petitioners have taken a legal plea that by virtue of section 18(c) of National Accountability Bureau Ordinance, 1999 the investigation could only be authorised by the Chairman or an officer of NAB duly authorised for the purpose. In absence of Gazette Notification sanction granted by Director-General NAB Major General Mukhtar Ahmed to conduct investigation is void and coram non judice as no notification was ever published authorising the Director- General NAB Major-General Mukhtar Ahmed to conduct such investigation. The bare reading of subsection (c) of section 18 of National Accountability Bureau Ordinance, 1999 makes it .Clear that if Chairman or an officer of the NAB duly authorised by him, is of the opinion that an enquiry or investigation should be initiated against any person they can refer the matter for the purpose.
14. Section 34-A of NAB. Ordinance, 1999 further empowers Chairman NAB to delegate his powers, by an order in writing, to an officer of the NAB, as he may deem fit and proper. In exercise of such powers on 24-1-2005 as appears in the investigation report Investigating Officer was authorised to investigate the matter.
15. ' The next ground taken by petitioner was that without receiving any complaint or reference from appropriate Provincial Government, investigation was improper. We regret to say that the section 18(b) of NAB Ordinance, 1999 specifies three different events when the law of NAB Ordinance can set in motion:--
(i) a reference received from the (omitted) appropriate Government; or.
(ii) receipt of complaint; or
(iii) (its) own accord.
16. So even if no reference was received from the Government or there was no complaint from any other part, NAB is authorised to make an enquiry and investigate the matter at its own accord. If the Government fund specified for a particular purpose are being misappropriated by the persons who have been entrusted to secure the interest of Mustahqeen of Zakat .Fund serious steps was needed and that had been done by NAB. Being Chairman and member of Health welfare Committee character of both petitioners was of fiduciary nature and it is an unimaginable fact that both the petitioners possessing dignitary status in society would be accused of corruption and misappropriation. Though deeper appreciation of evidence is not required at the stage of bail, but still NAB has collected sufficient material and reasonable grounds exist against the petitioners for rejection of bail petitions.
17. ' In view of the above discussion, both the constitutional petitions are hereby dismissed having no merits.