ISLAMABAD: While expressing wonder how a civilian can be tried by a court martial, the Supreme Court on Wednesday asked the federal government to come prepared and assist it on legal provisions regarding a military court trial on civil offence.

The observation came during the hearing of the federal government’s appeal against the Jan 9 short order of the Lahore High Court’s Rawalpindi bench that had declared the detention of retired lieutenant colonel Inamul Rahiem unlawful on a habeas corpus petition of his son Husnain Inam.

The Supreme Court bench comprising Justice Mushir Alam and Justice Muneeb Akhtar asked Additional Attorney General Sajid Ilyas Bhatti to provide assistance to the court on Sections 94 and 95 of the Pakistan Army Act, 1952 and Section 549 of the Criminal Procedure Code.

The SC bench also wondered how the colonel after being retired from active duties could be tried under the Official Secret Act, 1923. Mr Bhatti explained to the bench that though the colonel had been released he was still being investigated and that he would assist the court further after seeking instructions from the relevant authorities in this regard.

During the hearing, Justice Alam remarked that the retired colonel was facing serious allegations of national security breach yet he was released by the armed forces. The judge also reminded the additional AG that the accused was never released on the directions of the apex court. The federal law officer also conceded that there were other reasons behind the release of the retired colonel.

Additional AG asked to assist court on legal provisions for court martial on civil offence

Retd Col Inam, who had also served as a lawyer in the military’s Judge Advocate Gen­eral branch, was picked up from his Rawa­lpindi home on Dec 17, 2019. The federal government on Jan 22, 2020 startled the Supreme Court by stating that the detained lawyer was being released on certain conditions.

Section 94 of the Pakistan Army Act (PAA) 1952 suggests that the presiding officer has the discretion to decide whether a person accused of civil offence should be tried under the criminal court or by the court martial when the nature of the offence falls within the jurisdiction of both the criminal court and the court martial.

Likewise, Section 95 of the PAA says that when the criminal court decides that the proceedings should be instituted before itself it may, by written notice, require the prescribed officer, at his option, either to deliver the offender to the nearest magistrate to be proceeded against according to the law.

Similarly, Section 549 of the CRPC says that if the person arrested by the police is subject to the PAA and the offence for which he is accused is triable by the court martial, the custody of such person may be taken over by the commanding officer (CO) of such person.

Justice Akhtar observed that what concerned the court the most was the level of allegations against the retired colonel and recalled that the superior court had already held that civilians could not be tried by the court martial and for doing so a constitutional amendment would be required.

The judge observed that the court martial could not be held on civil offence without the permission of the federal government. He added that criminal courts could halt court martial proceedings.

During the hearing, the court also asked Legal Director of the Defence Ministry Falak Naz to take his seat when Additional AG Bhatti was already representing the federal government. The court also reminded Falak Naz that he could not speak without prior permission of the court or the counsel.

The additional AG, however, sought time to consult the authorities concerned and to go through the detailed judgement of the LHC.

While accepting his request, the court adjourned further proceedings for three weeks.

Meanwhile, the son of the retired colonel pleaded before the SC to reject the federal government’s appeal against the LHC order since the high court judgement was well-worded and based on well-settled principles.

In a rejoinder to the appeal, his statement recalled how despite providing opportunity by the high court, the authorities concerned did not bring on record any written material nor any other stance or any tangible charge for which retired colonel Inam was detained.

Published in Dawn, March 5th, 2020