1. ' Through this Constitutional petition, the petitioner has challenged the impugned detention/custody of his father namely Brig. (Retd.) Aslam Hayat Qureshi alleging that his detention suffered from serious infirmity, and prayed for release of the said detainee.
2. ' According to the facts of the case, Brig. (Retd.) Aslam Hayat Qureshi is facing trial in Reference No,38 of 2000 under section 18(g) read with section 24 of the National Accountability Bureau Ordinance, 1999 before the learned Accountability Court No,1, alongwith co-accused Choudhry Ahmed Mukhtiar, former Minister, Commerce, Shaikh Muhammad Ishaq, Ex-Chairman, B.E.C.P., Salman Farooqi, Ex-Secretary, Commerce, and Riaz Laljee.
3. ' The precise allegations against the accused are that while holding the post of Secretary, Ministry of Commerce, without going through the tendering process, he forwarded two proposals for purchase of Irri-6 rice by two foreign buyers, in spite of the fact that his attention was drawn to the decision of the Economic Coordination Committee of the Cabinet whereby the sale of rice beyond 50,000 Metric Tons without inviting tenders was restricted and further that the R.E.C.P. Was not in possession of the stocks, yet the accused alongwith other co-accused accorded the approval of the sale of 250,2000 Metric Tons at the rate of US $ 232. The deal in question started from 1-9-1995 and agreements were signed on 5-10-1995, while the accused was holding the post of Secretary Commerce.
4. ' According to the allegations levelled in the reference the accused should have submitted such a summary to the Commerce Minister as provided under the Rules of Business (Central Government), 1973, to bring the prohibition to the notice of the Minister, but he did not do so. The accused abetted the commission of crime by not making any effort to protect the loss and because of his act the Government exchequer sustained loss amounting to Rs,67,801,335. As the accused was holder of a public office, and there were sufficient grounds to believe that accused alongwith other co-accused persons committed the acts of corruption and corrupt practice as defined in section 9 read with section 10 of the N.A.B. Ordinance and the Schedule annexed thereto.
5. ' We have heard Mr. M. Ilyas Khan, learned counsel for the petitioner and Mr. Syed Tariq Ali, Federal Counsel, and perused the record.
6. ' It has been contended on behalf of the petitioner that the accused was in custody since 12-6- 2000, he was innocent, the deals were made after his transfer from the said post and the deal which in fact caused loss to the Government exchequer took place subsequently. It was further contended that the accused had in fact played no role in the transaction and in any case he was not a beneficiary. It was next argued that the agreement was a contingent agreement and was subject to availability of the rice. Learned counsel in support of his arguments has relied upon various case-law, more specifically the judgment of the Lahore High Court in C.P. No,1187 of 2000 and the order, dated 10-7-2000 by the Honourable Supreme Court in Civil Petitions Nos.1630/L and 1662/L of 2000.
7. ' Learned counsel appearing for the Federal Government, however, vehemently opposed the grant of bail on the premises that the facts of the present case are quite different from the cases cited by the learned counsel for the petitioner. He next argued that sufficient evidence has been collected against the accused, the charge has been framed on 27-3-2001, the trial has commenced and the matter was fixed for recording of evidence and that this Court was not expected to look deeply into the evidence at bail stage.
8. ' It is an admitted fact that the deal started while the accused was posted as Secretary Commerce.
9. It is also not denied that the deal was executed without inviting tenders and was done in violation of the decisions taken in the Economic Coordination Committee of the Cabinet. It is a matter of deeper appreciation of evidence to hold as to whether the accused was a beneficiary or not. Even otherwise it is immaterial, as according to the provisions of section 9 of the Ordinance No,XVIII of 1999 he who misuses his authority to gain any benefit for himself or any other person or renders or attempts to do so or wilfully fails to exercise his authority to prevent the grant of rendition of any undue benefit or favour which he could have prevented by exercising his authority, tantamounts to committing the offence of corruption or corrupt practice.
10. It is a settled principle of law that at bail stage the Court has only to see whether the accused was connected with the commission of the crime or not. For that purpose only tentative assessment of evidence is to be made and deeper appreciation is not called for. Reference may be made to PLD 1994 SC 65 and PLD 1994 SC 88. Their Lordships of the Honourable Supreme Court in the case of Shahzaman and 2 others v. The State and another PLD 1994 SC 65 recorded their observations in the following words:-- ' "At the stage of bail and before recording of evidence in the trial Court, only tentative assessment is to be made for the purpose of deciding bail application and it is not permissible to go into the details of the evidence one way or the other because that might prejudice that case of one party or the other."
11. ' The contentions raised by the learned counsel for the petitioner certainly require deeper appreciation of evidence and the same is not warranted.
12. The charge against the accused has been framed, the trial has commenced and the matter is now fixed for recording of the prosecution evidence. According to learned Federal Counsel five P.Ws.
13. Were in attendance on 7-4-2001 but the case could not proceed due to adjournment sought on behalf of the co-accused. The Honourable Supreme Court in the case of Muhammad Sadik and others v. The State 1980 SCM R 203 was pleased to observe as under:-- ' "In that view of the matter we think that when the trial is to commence shortly, and a date has already been fixed by the Court, it is not fair to gc into the merits of the case in the form of a bail application at this juncture and the case is, therefore, not fit for grant of special leave to appeal."
14. Needless to mention here that the facts and circumstances in every criminal case are not always alike and each case has to be considered on, the basis of its particular circumstances.
15. ' The accused in the cases referred hereinabove by the learned counsel for the petitioner before the Honourable Supreme Court were involved in the offence of "wilful default" concerning the failure of repayment of loans borrowed by them from different financial institutions which is not the offence alleged in the present reference and as such the facts of this case are absolutely different from those cited by the learned counsel. The Honourable Supreme Court in the case of Karim Bux v.
16. The State 2000 SCM R 1405 was pleased to observe that grant or refusal of bail eventually depends upon the facts of each case and no inflexible rule can be laid down for the exercise of discretion.
17. In the facts and circumstances as discussed hereinabove, we are not inclined to grant bail to the accused at this stage. Accordingly the listed application is hereby dismissed.
18. ' It may, however, be mentioned that the observations made in this order are tentative in nature and will have no bearing on the merits of the case.