' RAJA MUHAMMAD KHURSHID KHAN, J.-Ch. Muhammad Latif appellant, ex-Registrar, Co-operative Societies, Azad Jammu & Kashmir, alongwith four other persons, namely, Ch. Pazal Elabi, Ch. Nosherwan Ali, Ch. Jahangir Ali, Directors of the Kalyal industrial Bank and Ch. Muhammad Ismail, Manager . Of the Main Branch of the Kashmir National Co-operative Bank, was arrested on the night falling between the 24th and 25th of December 1977 for allegedly committing offences under sections 419, 420, 409, 406, 467, 468, 471 of the Penal Code and section 5 (2) of the Prevention of Corsuption Act.
2. The appellant after his arrest applied for bail on the 26th of December 1977 before the learned Additional Sub-Judge (Allege Magistrate), Muzaffarabad. This application was rejected by the learned Magistrate on the ground that the Anti-Corruption Judge was already hearing such an application of the appellant. But the learned Judge Anti-Corruption too rejected the bail application vide his order dated 1-1-1978. The petitioner then approached the HO Court for his enlargement on bail but his application was disallowed by the learned Chief Justice of the High Court on 14-1-1978.
3. On his petition for leave to appeal on the 9th of February 1978, leave to appeal was granted to look into the validity of the order passed by the learned Chief Justice in maintaining the decision of the Anti-Corruption Judge.
4. Prosecution case, in brief is that huge amounts of deposits in the Kalyal Industrial Co-operative Bank and Kashmir National Co-operative Bank amounting to crores of rupees have been misappropriated by the Directors in different methods in contravention of the rules. The part in the transaction attributed to the appellant is that he intentionally failed to exercise his powers under the Co-operative Act to take suitable actions to], remedy such wrongs. There is no charge against the appellant that her himself misappropriated or embezzled any amount. According to the!
Prosecution, the appellant abetted the offences under the Penal Code and also committed the offences of criminal misconduct as defined in section 5 (1) (c) of Prevention of Corruption Act, in dishonestly and fraudulently allowing the Directors of the Banks in misappropriating or otherwise converting for their own use the amounts deposited in the Banks.
5. It is elementary that grant of bail specially in offences where penalty is not death or transportation for life, is the rule and refusal an except on and the mere amount involved is not by itself sufficient to refuse bail. In this respect, PLD 1963 Lah. 279 was referred. In this case at page 480, Mr. Justice Manzoor Qadir, Chief Justice (as he then was) observed that : "the person accused is not to be deprived of his liberty unless the interests of a proper investigation and trial, and those of society, cannot be protected without doing so. The seriousness of the offence and the strength of the evidence are not by themselves relevant for the purpose of deciding whether the liberty of a person, who is presumed to be not guilty, is to be taken away or not. They are relevant only indirectly in so far as they may have a bearing on the strength of his desire to defeat a proper inquiry into his offence, or of his propensity for committing other offences because of a feeling that he will be incurring no additional risk by doing so.
' When granting or refusing an application for bail during trial, therefore, a Court should never base its decision directly on its estimate, of the strength or weakness of the case against the accused.
Quite apart from the fact that the strength or weakness of the case is not directly in issue at that stage, an expression of opinion on that point amounts to judging at a premature stage the very matter that is to be decided at the trial after a proper inquiry. When that opinion is expressed by a higher Court it is sometimes taken by the trial Court to be a pointer in one direction or the other and thus is likely to operate to the prejudice of one party or the other."
' Mr. Justice Dorab Patel, J. In 1978 SCMR 64 dealing with the point observed that : "no doubt the amount involved is large but by itself this would be no ground for refusing bail."
' In that case, during the investigation under sections 419, 420, 468, 471, 409, P. P. C. Rs, 1,70.000 were recovered from the petitioner at the time of his arrest. His bail application in the Sessions Court as well as before the High Court were rejected. The petitioner filed a petition for leave before the Supreme Court which was converted into an appeal and bail was allowed to him.
6. The learned Chief Justice of the High Court refused appellant's bail on the ground that he had tailed to perform his duties and was allegedly a privy to the offences committed by the other accused. We are not impressed with this reasoning qua refusing bail.
' In the case of the appellant, it is yet to be determined by the trial Court, in case he is prosecuted, whether his omission to perform his duties as Registrar of the Co-operative Department amounts to dishonestly and fraudulently allowing other persons in misappropriating or otherwise converting to their use banks' money or not? It is premature to express one view one way or the other in this ease at this stage. Otherwise too, it would not be proper to say as to whether the appellant could or could no be held as a privy to the main offences committed by the other accused for his failure to perform his official duties cast upon him under the Co-operative Act or the bye-laws. It may also be pointed out that bail is not to be with held as a punishment as injudicious incarceration of a person without strong grounds cannot remedy the wrong done by keeping him in confinement even if be is acquitted thereafter. In the circumstances of this case and for the reasons stated above, we accept the appeal and confirm our ad interim order dated 9-2-1978. We would like to make it clear that if at any stage the Courts below come to the conclusion that sufficient evidence has come on record to connect the accused with the offences, they will be at liberty to cancel the bail. The appellant shall also make himself available to the Investigating agency at reasonable time when and if so required.