1. ' The 15 petitioners are members of the Azad Kashmir People's Party and were arrested under sections 12 and 13 of the Emergency Powers Act for demonstrations and the use of unbecoming language after Mr. Zulfikar Ali Bhutto was sentenced to death by the Lahore High Court. Their applications for bail were rejected by the Special Court, Poonch.
2. ' I have heard the learned counsel for the parties. The grant of bail in all cases, except murder, is a rule and refusal is an exception unless, of course, the case is one of public policy. It was contended by the learned A counsel for the petitioners that the prosecution of their clients was mala fide and vindictive and in this connection it was claimed that the permission of the District Magistrate for their prosecution under the Emergency Powers Act was secured only after this point was raised on their behalf before the Special Court. It was also claimed that there was no sufficient or credible evidence in support of the accusation against them. It is premature to go into these matters at this stage and I have no doubt that the Special Court will decide them at proper stage if the parties raise these points before it. It was not claimed on behalf of the Government that there was any danger of the accused jumping off bail. Therefore, I don't see any particular reason why the petitioners may not be released on bail. No special circumstances to justify its refusal were placed before the Court. All that the learned Government Advocate, who argued the Government case, stated was that there was a prima facie case and that the petitioners were accused of an offence which was punishable with transportation for life. Incidentally, transportation has ceased to exist long ago. I asked the learned Public Prosecutor to cite a single case, except cases of murder, where bail may have been refused merely because the Government claimed that there was a prima facie case of an offence punishable with transportation but he was unable to cite any such case. It may also be stated that the trend of law during the last decade has been in favour of the liberty of a citizen.
3. ' This point was not raised on behalf of the Government by the Public Prosecutor but I would like to say a few words about it to clarify the state of law. The Emergency Powers Act was first enforced on the 15th of October, 1958. Section 16 of the said Act is reproduced below :- "Notwithstanding anything contained to the contrary in the Criminal Procedure Code or any other law for the time being in force, all offences under this Act shall be cognizable, non-bailable and non-compoundable."
4. ' This was interpreted by this Court in Dil Mir v. Sarkar (1), as merely meaning that the offences wet e non-bailable but taking away the powers of this Court to release persons accused of offence under the said Act on bail under sections 497 and 498, Cr. P. C. After this decision, the Government amended the Act and inserted section 16(a) which is as follows :-- "Notwithstanding anything contained to the contrary under sections 497 and 498 of the Criminal Procedure Code or in any other law for the time being in force, no person accused or convicted of an offence made punishable by this Act or by an order under this Act, shall be released on bail or on his own bond by any Court except Special Court constituted under the Act."
5. ' The question, therefore, came up again before the High Court in the unreported judgment "Sabir Hussain v. Sarkar", decided on 20-4-1959, approximately 19 years back. The Full Bench consisted of Syed Fayyaz Hassan Shah, C. J., Khan Abdul Hamid Khan and Khawaja Muhammad Sharif, JJ. The relevant question formulated for decision of the Full Bench was :- "Whether the amended section 16(a) of the Emergency Powers Act, 1958 did not take away the jurisdiction of the High Court under sections 491 and 561(a) of the Criminal Procedure Code 7"
6. ' The Full Bench conceded that its powers under sections 497 and 498 had been expressly taken away but that nevertheless it still had power to gran n bail to persons accused under the Act, under section 561(a) of the Criminal Procedure Code. In this connection, the learned Judges held :- "I am afraid, I am unable to agree with this interpretation of section 16(a) by the Government Advocate. I am unable to say that by the words 'or any other law for the time being in force' found in section 16(a), section 561(a) had been impliedly repealed so far as the inherent powers of the High Court in granting bail under that section were
(1) PI,D 1959 Azad J & K 61 concerned. On the other hand, I think that the presumption should be that even on declaring a state of emergency, the Legislature would curtail as few of the powers of the High Court as possible. Indeed, I believe, that in the Constitutions of the civilized States, regarding emergency provisions, though largely the Constitution may be suspended; yet the powers of the High Court are never interfered with. Even in the now defunct Constitution of Pakistan, there is a proviso under clause (c) of subsection (2) of section 191 that 'though the President may assume all the powers exerciseable by any authority and by proclamation suspend in whole or in part the operation of any provision of the Constitution . . . . . . . ., he shall not assume any of the powers vested in or exerciseable by a High Court or suspend either in whole or in part the operation of any provision of the Constitution relating to High Courts.' This rule appears to me to be based on a sound reason, as otherwise, the High Court would be reduced to an impotent and useless institution. If the arguments of the learned Government Advocate were to be adopted, the intention attributed to the legislative authority would be that it was desired to reduce the highest Court in the realm to an impotent and useless institution. I am unable to hold that the legislative authority intended to achieve this result. For these reasons and applying the maxim expressio unius est exclusio alterius, I hold that section 16(a) of the Amendment Act does not in any way curtail the inherent powers of the High Court under section 561(a) of the Criminal Procedure Code."
7. ' Since then no case has been brought to our notice where a contrary view might have been taken by this Court, which means that this decision of this Court holds the field for the last 19 years.
8. ' Therefore, the applications for bail are accepted. The petitioners will be released on bail on furnishing bail bonds in the sum of Rs, 1,000 each with personal bonds in the same amount, to the satisfaction of A. D. M., Rawalakot. However, the accused belonging to Pallandari Tehsil are permitted to produce the said bail and personal bonds to the satisfaction of Sub-Judge/ Magistrate 1st Class, Pallandari. On production and attestation of the said bonds by the learned Magistrates concerned, the said Magistrates will issue orders for their release.