ABDUL HAMEED DOGAR, J.-- Petitioner seeks leave to appeal against the order, dated 2-11-2006 passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby Constitutional Petition No,D-2004 of 2006 filed by him for grant of bail was dismissed.
2. Briefly, stated facts giving rise to the filing of instant petition are that accused No,1 Dr. Mirza Raza Ali took over the acting charge of Medical Superintendent, Civil Hospital, Karachi, on 13-9-2003 and continued till 3-11-2004. By virtue of post, he was to act as Chairman/Convener of Health Welfare Committee, Civil Hospital, Karachi (hereinafter referred to as "the Committee") meant for proper disbursement of Zakat Fund among the Mustahiqeen. Thus, it had full domain over the Zakat Fund allocated by the Central Zakat Council, Islamabad. During the above mentioned period, an amount of Rs,11:600 million was released by Central Zakat Council, Islamabad to the Committee for its proper utilization strictly as per rules. As per facts disclosed in Reference the allegation of misappropriation of fund in violation of the laid down procedure for Zakat disbursement were levelled against accused No,1 in connivance with accused Nos.3 to 6 namely, Muhammad Moiz Kashmiri, Syed Mumtaz Ali Qadri, Shahzad Ali Khan and Masroor Ahmed Khan. It has also been mentioned therein that the above mentioned accused were found jointly benefited with the misappropriated Zakat Funds worth Rs,29,06,816. As regards petitioner, it has been alleged against him that he as Additional Medical Superintendent and Member of the Committee deliberately assisted accused No,1 while giving approval for issuance of cheques against fake, fictitious, forged invoices, bills and indent forms and thus, by dishonestly or illegal means they obtained for themselves pecuniary advantage thus, indulging in corruption and corrupt practices as defined in clauses (ii), (iv) and (vi) of section 9(a) punishable under section 10(2) of National Accountability Ordinance and Schedule thereto. The petitioner was arrested on 2-10-2006 and produced before Accountability Court No,1, who remanded him to judicial custody.
3. Petitioner applied for his release on bail before the learned High Court of Sindh, Karachi, through constitutional petition, which was dismissed vide impugned order.
4. We have heard Mr. Muhammad Ashraf Kazi, learned Advocate Supreme Court for petitioner and Mr. Ainuddin Khan, learned Advocate Supreme Court for respondent-NAB and have gone through the record and the proceedings of the case in minute particulars,
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 Fund 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.
He lastly contended that there appears reasonable ground to believe that the petitioner is not involved in the offence.
6. On the other hand, Mr. Ainuddin Khan, learned counsel for respondent-NAB though argued at length yet could not rebut the arguments advanced by learned counsel for petitioner. Even according to him, as per structure .Of Committee, the cheques were to be signed by accused No,1 its Chairman and Hakim Moulana Muhammad Akbar Dars, the member jointly. Though afforded an opportunity to produce any cheque, as regards release of Zakat Fund signed by petitioner, but he failed to provide.
7. At the first instance it would be appropriate to reproduce here the structure of Committee:--- {{TABLE}} "1. Capt. (R) Dr. Mirza Raza Ali, the then M.S. CHK, Convener (13th September, Chairman 2003 to 2nd November, 2004)
Dr. Allah Nawaz Qazi, AMS (Zakat) CHK Member Hakim Moulana Muhammad Akbar Dars, Chairman District Zakat Union Council Member District South, Karachi Mr. Javed Ali Khan Juma, Medical Social Secretary Officer CHK ' Besides above members, the following were the co-opted Members of HWC:-- Mr. Abdul Shakoor District Zakat Officer, District South, Karachi Co-opted Member Dr. M. Kaleem Butt A.M.S. (CHK) Co-opted Member Dr. Atia Ahmed Senior Women Officer Coordinator CHK {{TABLE}}
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 appearing on behalf of NAB could not produce any cheque or other relevant document showing the signature of petitioner whereby Zakat Fund was said to have been misappropriated by 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 A while giving approval for issuance of cheques, fake and fictitious, forged invoices, bills and indent forms which factor can only be assessed after recording evidence of the prosecution. 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 Fund. 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 v. 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 certainty after assessment of evidence.
9. Accordingly, the petition is converted into appeal and while allowing the same, the petitioner is admitted to bail in the sum of Rs,2,00,000 with one surety in the like amount to the satisfaction of trial Court. On 20-12-2006, following short order was passed:- "For the reasons to be recorded later on, this petition is converted into appeal and allowed. The impugned judgment, dated 2-11-2006 passed by learned Division Bench of High Court of Sindh, Karachi, in Constitutional Petition No,D-2004 of 2006 is set aside and the petitioner is granted bail in the sum of Rs,2,00,000 with one surety in the like amount to the satisfaction of the trial Court."