' This application is directed against the order passed by the Sessions Judge (Special Judge, Anti- Corruption), Muzaffarabad, on March 14, 1996, whereby bail was refused to the petitioner.
2. The fact forming the background of this bail application precisely are that a case under sections 419, 420, 467, 468, 471, 409, A.P.C. Read with section 5(2), Prevention of Corruption Act, was registered with the Anti-Corruption Police, Muzaffarabad, on the complaint of Mr. Muhammad Farid Awan, Deputy Accountant-General, on January 11, 1996. It was alleged in the report that Syed Muhammad Latif Gilani, Accounts Officer in his report, mentioned that the bills referred in the complaint were fictitious and Syed Shaukat Ali Javed Gilani, P.R.O. To the Special Assistant, Prime Minister Secretariat, after receiving the cheques, credited the same in his Account No,2852-1, with the National Bank of Pakistan, Civil Secretariat Branch, Muzaffarabad. It was further disclosed in the report that accused Shaukat All Javed Gilani son of Rehmatullah was Junior Auditor in the Audit Department and from October 1991, he was on deputation as Section Clerk, Prime Minister Secretariat. It was further alleged that the amount was drawn illegally from the Public Treasury, on the basis of forged bills.
3. In the course of investigation, the accused-petitioner was apprehended and it was discovered that an Account No,C/A 240-2 was opened by him in the name of "Khan Electric Store", in the National Bank of Pakistan, Gojra Branch, Muzaffarabad and the cheques of Rs,53,883, Rs,36,218, Rs,32,258, Rs,3,61,806 and Rs,1,15,164 issued in the name of above Account-holder, were credited in the said account, subsequently drawn by the accused-petitioner through cheques amounting to Rs,5,99,333. The amount was claimed to be deposited in the account of the accused-petitioner by accused, Shaukat Ali Javed Gilani. The prosecution alleged abetment against the accused- petitioner, with the principal accused. The above-referred cheques credited in the account of the accused-petitioner, were alleged to be issued on the basis of forged bills.
4. An application for the grant of bail after arrest was moved by the accused-petitioner before the Special Judge, Anti-Corruption, Muzaffarabad, on March 12, 1996 which was disallowed on March 14, 1996. The above order has been assailed in the present petition.
5. Mr. Muhammad Idrees Mughal, the learned counsel for the petitioner, raised the following points in support of the petition:--
(i) that there is no prima facie case disclosed by the prosecution against the accused-petitioner;
(ii) that the allegations leveled against the petitioner require further probe, as such, the matter is of further inquiry;
(iii) that it is categorically denied by the petitioner to have opened any account in the name of his "Store". It was explained that someone fictitiously opened the account in the name of his "Store", "Khan Electric Store", therefore, the petitioner neither deposited any amount nor drew the same from the said account;
(iv) that the account alleged to have been opened by the accused-petitioner, does not contain a copy of his identity card with the Bank Authorities which was opened on the identification of the Bank Manager against whom neither any case was registered nor his statement as a witness was recorded;
(v) that it is not proved beyond any suspicion and doubt that the amount was deposited in the above-referred alleged account of the accused-petitioner by Syed Shaukat Ali Javed Gilani, accused; and
(vi) that the accused-petitioner, after the completion of investigation, is in judicial lock-up and is no more required by the police for any investigation.
6. On the other hand, Mr. Abdul Rashid Kamahi, the learned Assistant Advocate-General opposed the petition on the following grounds:-
(i) That a serious and heinous offence has been committed by the accused-petitioner. It was explained that with his abetment, the accused Shaukat Ali Javed Gilani misappropriated the huge funds by forged bills and fictitiously drawing heavy amounts which were credited in the Account of accused-petitioner;
(ii) that the challan of the case has not been forwarded to the Court as the investigation is in progress; and
(iii) that the principal accused, Syed Shaukat Ali Javed Gilani, is absconding and his arrest would be impossible in case bail is allowed to the accused-petitioner.
7. I have heard the learned counsel for the parties and also gone through the record, including the police diaries. According to the prosecution, the main allegation against the accused-petitioner is that he opened an account with the connivance of accused Syed Shaukat Ali Gilani. The cheques on the basis of forged bills, were received by the said accused, Syed Shaukat Ali Javed Gilani. The cheques amounting to Rs,5,99,333 were got issued in the name of accused-petitioner's account opened in the name of "Khan Electric Store" which were credited there and later on drawn by the accused-petitioner. The investigation made so far reveals that the relevant cheques credited in the account of the accused-petitioner, were recovered vide different memos. And the cheques through which the amount was withdrawn from the account of "Khan Electric Store", were also recovered. The petitioner has denied to have opened any account in the name of his "Store", "Khan Electric Store", and also denied to have drawn any amount from the above account. The account opening form recovered by the police, shows that the account was opened in the name of abovementioned "Store", to be operated by Amjad Mahmood, accused-petitioner, ban the introduction of Bank Manager. It may be pointed out that the account was opened in the name of abovementioned "Store", without receiving a copy of the identity card ,of the account-holder, introduced by the Bank Manager, against whom neither any case was registered, nor his statement as prosecution witness was recorded, for having opened the account and so introduced by him as Account-holder. The investigation made so far is set clear as to whether the accused-petitioner is the same person who opened the account, operated by the same and thus drew the amount which was credited in his account by Syed Shaukat Ali Javed Gilani, accused through cheques after misappropriating the same from the public funds, through forged bills.
8. The . Next question arises whether in view of the circumstances mentioned above, the petitioner is entitled to be released on bail or not. It is the basic principle of law that bail is not to be refused as punishment merely on the allegation that a person has counted an offence punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose his complicity.
The wisdom behind it is that if an accused, in view of the circumstances of the given case, is finally acquitted, how can he be compensated for his detention in the judicial lock-up during the trial.
Therefore, the law allows the concession of bail to such accused person.
9. However, it is to be borne in mind that a person accused of is not to be deprived of his liberty unless the interest of proper investigation and trial and those of society cannot be protected without doing so. The seriousness of the offence and strength of evidence are not by themselves, relevant for the purpose of deciding whether the liberty of a person who is presumed not to be guilty, is to be taken away or not. Those are relevant only, indirectly in so far they may have bearing on the strength of his desire to defeat a proper inquiry into his offence.
10. The bail under section 497, Cr.P.C. Is refused if there appear reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. But if it appears, at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-boilable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail. The question of bail came under consideration before the different jurisdictions, in the facts and circumstances as involved in the instant case. Dealing with the similar matter, Mr. Justice Sajjad Ahmed Jan (as he then was) in a case titled Manzoor and others v. The State PLD 1972 SC 81 observed:-- "It is important to remember that bait is tO De withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him, but no satisfactory representation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
' In another case, titled Muhammad Bashir v. The State PLD 1983 SC (AJ&K) 8, the Supreme Court of Azad Jammu and Kashmir resolved the proposition in the following words:-- "It is the basic principle of law that the bail is not to be refused as a punishment merely on the allegations that a person has committed an offence punishable with death or transportation of life unless reasonable grounds appear to exist to disclose their complicity. The wisdom behind it is that if an accused in view of the circumstances of a given case is finally acquitted, how can he be compensated for his detention, in the judicial lock-up during the trial. Therefore, the law allows concession of bail to such a person of course pending further enquiry into his guilt."
' Muhammad Latif's case PLD 1978 SC (AJ&K) 83, can also be referred wherein the proposition closer to the facts of the present case was involved. The relevant observation made in the above-cited case is reproduced:-- "S.5(1)(c), (2)---Bail---Petitioner charged for abetment of offences under Penal Code and also for committing offences of criminal misconduct as defined in S.5(1)(c), Prevention of Corruption Act in dishonestly and fraudulently allowing other accused to misappropriate amounts---Trial Court yet to determine whether or not petitioner guilty of offences and whether could be held privy to main offences committed by other accused-petitioner granted bail on appeal."
' In another case, Mr. Justice Dorab Patel (as he then was), while dealing with the point that a large amount is involved, gave the following verdict recorded in the case reported as 1978 SCMR 64:-- "no doubt, the amount involved is large but by itself this would not be a ground for refusing the bail."
The dictum of the Supreme Court of Pakistan in a case titled Amanullah Shah v. The State PLD 1996 SC 241 would be relevant for the purpose of present controversy which is in the following words:- "----S. 497(5)---Penal Code (XLV of 1860), 5.302/109---Bail--Whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial."
11. After surveying the relevant law on the subject, in the light of the circumstances emanating from the facts disclosed above, it can safely be held that the case of the accused-petitioner requires further probe into his guilt, as such is of further inquiry. The order refusing bail by the trial Court to the accused-petitioner, after careful consideration, is not found to have been based on reasons and therefore, being in conflict with the basic principles dealing with the bail matters, is not maintainable. This Court though normally does not interfere in the orders recorded by the trial Courts in exercise of its judicial discretion but where a departure to the basic principles is noticed, the interference all the more becomes necessary, as such setting aside the order recorded by the trial Court, the petition is accepted and the accused-petitioner is applicants on bail on their furnishing surety in the sum of Rs,1,00,000 each and P.R. Bond in the like sum to the satisfaction of the trial Court.