1. ' MUNIB AHMED KHAN, J.--- The learned counsel for the petitioner, Mr. Ali Anwar Tariq has sought release of the petitioners on bail in Reference No,22 of 2006, filed by NAB against the petitioner along with five others. According to allegation, an information was received that Zakat funds, to be used through Health Welfare Committee (HWC), Civil Hospital, Karachi for needy persons, was misappropriated by the accused in connivance with five other accused persons. It has further been mentioned that to deal with Zakat funds, there was HWC and the petitioner was its Chairman with two other members and a secretary. The accused with the connivance of another member Dr. Allah Nawaz Kazi makes either fake purchases of medicines or procured fake receipts from accused Nos.3 to 6, who are owners/representatives of medical stores or supplier of medicines. In that way, it has been alleged that petitioner misappropriated considerable amount and other co- accused also benefited monetarily, as they facilitated the petitioner and other members of HWC.
2. Since the petitioner and other co-accused, fraudulently and dishonestly, misappropriated Zakat funds by corrupt and illegal means, therefore, they were proceeded against, under section 9(a) (ii)
3. (iv)(vi), punishable under section 10-A of National Accountability Ordinance, 1999.
4. ' The petitioner, earlier to this petition, had -moved C.P. No,D1911 of 2006, which was heard along with C.P. No,D-2004 of 2006, filed by co-accused Dr. Allah Nawaz Kazi but this Court by order dated 2-11-2006 dismissed both on merit. Dr. Allah Nawaz ' Kazi, accused under the same reference moved to the Honourable Supreme Court and by order dated 20-12-2006, the Honourable Supreme Court was pleased to admit him to bail.
5. ' Now, Mr. Anwar Ali. Tariq has moved this petition mainly on the ground that since Honourable Supreme Court has granted bail to a co-accused in one and same reference, therefore, the petitioner is also standing on the same footings, as his case is not distinguishable from co- accused Dr. Allah Nawaz Kazi and he may be admitted to bail. He has placed copy of judgment of Honourable Supreme Court in Criminal P.L.A. No,577-K of 2006 on record.
6. ' Since earlier Bail Application No,1911 of 2006, filed by the petitioner, was dismissed on merit, therefore, we have to see as to whether the case and the role played by the petitioner is similar to that of Dr. Allah Nawaz Kazi or different.
7. ' Mr. Ali Anwar Tariq has read the judgment of Honourable Supreme Court and has argued that the allegation against the petitioner and Dr. Allah Nawaz Kazi was same, as both were members of HWC and same allegation of issuance of cheques and misappropriation of funds ' has been alleged. He has also submitted a copy of judgment in Criminal P.L.A. No,664 of 2006 (Muhammad Amin Farooqi v. The State) and has argued that no purpose will be served by keeping the petitioner in custody and the petitioner is ready to deposit solvent surety for his attendance to face the trial and that principle of criminal law is that the bail should not be withheld as punishment in non- bailable offence.
8. ' On the other hand, Mr. Shafaat Nabi Khan Sherwani, learned D.G.P.A. Appearing for the NAB has strongly refuted the argument of petitioner's Advocate and has pointed out distinguishable features in the role of both the accused persons. He has submitted that petitioner was the Chairman of HWC. He has argued that Honourable Supreme Court in that judgment has considered the petitioner as beneficiary while this is not the case of Dr. Allah Nawaz Kazi. Anyhow, he has shown relaxation of the NAB towards concession of bail to the petitioner, if he deposits misappropriated amount.
9. After hearing the learned counsel and perusing the record very carefully, we have observed that Honourable Supreme Court has itself distinguished the case of the petitioner with the case of co- accused Dr. Allah Nawaz Kazi. For ready reference, we produce paragraphs Nos.5 and 8 of the said judgment, as follows, which shows the contention of the counsel of Dr. Allah Nawaz Kazi as well as observation of the Honourable Supreme Court:-- "(5) Mr. Muhammad Ashraf Kazi, learned Advocate Supreme Court for petitioner vehemently contended that petitioner has nothing to do with the alleged offence and never indulged in misappropriation of Zakat funds in any manner. According to him, even as per the Reference, the only allegation against him that he assisted accused No,1 Dr. Mirza Raza Ali, Medical Superintendent by giving approval for issuance of cheques, fake and fictitious, forged invoices, bills and indent forms, is not fortified from the record. Even according to the structure of Committee and its functions, the cheques were to be jointly signed by accused No,1, Dr. Mirza Raza Ali and Hakim Moulana Muhammad Akbar Dars the Member. He strongly stressed that beneficiary, if any even as per Reference have been shown to be accused Nos. 1, 3, 5 and 6 and petitioner has not even been arrayed as beneficiary, therefore, his case is distinguishable from that of the other co-accused and is entitled for the concession of grant of bail. He contended that grant of bail cannot be withheld by way of punishment and there are no reasonable grounds for believing that the petitioner has been guilty of the charges levelled against him. He further contended that petitioner has been discriminated with other Members of the Committee as none out of them has been arrayed as an accused though his case is better than that of co-accused and other members of the Committee.
10. He lastly contended that there appears reasonable ground to believe that the petitioner is not involved in the offence.
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(8) From the above structure, it is clear that petitioner was only a member of the Committee. As regards the functions of aforesaid members of the Committee, it has been specifically mentioned therein that Zakat cheques are to be signed by accused Dr. Mirza Raza Ali and Hakim Ali Dars, a member. Even learned counsel appeared on behalf of NAB could not produce any cheque or other relevant documents showing the signature of petitioner whereby Zakat fund was said to have been misappropriated by the petitioner. As per the case of the prosecution, the allegation against the petitioner is that he as Additional Medical Superintendent and Member of the Committee assisted accused No,1 while giving approval for issuance of cheques, fake and fictitious, forged invoiced bills and indent forms which factor can only be assessed after recording evidence of the prosecution.
11. At this stage, without deeply scrutinizing the evidence, which is yet to be recorded by the trial Court, it cannot be ascertained at this stage, as to whether the allegations are without any foundation or not. Even as per Reference, the petitioner has not been shown as beneficiary in the alleged misappropriation of Zakat funds. On tentative assessment of the material on record, we are of the view that the petitioner has made out a case of his release on bail. This Court in the case of Anwar Saifullah Khan N. The State and 3 others 2001 SCM R 1040 while granting bail to the petitioner took into consideration that in the Reference, it was alleged against him that he had allocated L.P.G. To co-accused in violation of the prescribed rules by misusing his authority. It was also held that such allegation can only be determined by the trial Court with certainly after assessment of evidence."
12. From the above paragraphs, as well as other part of the judgment, it is not difficult to assess that the petitioner stands at contrast with co-accused Dr. Allah Nawaz Kazi and his case is distinguishable. Being Chairman of HWC, the petitioner was more responsible towards disbursement of the funds than any Member of the Committee, while according to allegations, the petitioner, some times made fake purchases against arranged fake bills from supplier of drugs and sometimes he did not utilize the medicines for the patients, it was meant for. The allegations against the petitioner are not of the character which involves one or two or even few people but public at large, resulting great suffering for needy people, therefore, the petitioner is not entitled to bail. The unreported judgment of the Honourable Supreme Court in the case of Muhammad Amin Farooqi does not help the petitioner as in that case only two official witnesses were examined in. a period of more than a year out of 26 witnesses, shown in that case, while present reference has been filed in September, 2006 and secondly, the nature of offence in the case of Muhammad Amin Farooqui vis-a-vis present case is quite different, as the latter could be termed as public crime and to be dealt with strictly.
13. By a short order dated 20-2-2007, we have dismissed the petition and above are reasons for the same.