ISLAMABAD: Just a day before the hearing of federal government’s appeal against the Lahore High Court ruling that declared retired Lt Col Inam-ul-Rahiem’s detention unlawful, the ex-army officer moved an affidavit before the Supreme Court, stating that the authorities can arrest a civilian under the Official Secret Act 1923 only if he is within the vicinity of a prohibited place.

The deponent said it was an admitted fact that he was forcibly taken away on Dec 17 last year from his residence, situated in a colony of retired officers outside Rawalpindi Cantonment, and not from any duly notified prohibited place.

The action was against the provisions of Section 12 of the Official Secret Act 1923, he stated in the affidavit, adding that neither his mobile phone nor any laptop or computer was ever taken away by the intruders from his home.

On Wednesday, a two-judge SC bench, headed by Justice Mushir Alam, will take up the federal government’s appeal against the LHC Rawalpindi bench’s order on the habeas corpus petition of Husnain Inam, son of the retired colonel.

At a previous hearing, the apex court had asked the federal government to assist it in understanding whether civilians could be tried under the Pakistan Army Act, 1952 by the Field General Court Martial and whether the fundamental rights as enshrined in Part II of Constitution’s Chapter I could be denied to a person even if he was not a member of the armed forces simply because he was made subject of the Army Act, 1952.

A notice had also been issued to Attorney General Khalid Jawed Khan to assist the apex court in understanding the difference between the languages used in Article 8(3) and Article 199(3) of the Constitution.

Article 8(3) says that any law inconsistent with or in derogation of fundamental rights will be considered void, but this provision will not apply to any law relating to members of the armed forces or of the police or any other forces charged with the maintenance of public order, for the purpose of ensuring proper discharge of their duties or the maintenance of discipline among them.

Article 199(3) empowers the high court to extend its jurisdiction if it is satisfied that no other adequate remedy is provided by law, but says an order shall not be made under clause 1 on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or an a person subject to such law.

On Tuesday, the retired colonel, in his affidavit, pleaded before the SC that he checked and confirmed from the police station concerned that the military authorities had never initiated any case or FIR as required under Sections 11 and 12 of the Official Secret Act.

During the entire period of his illegal custody of 37 days till date, the deponent claimed that he was never given any charge sheet, statement of allegations or the grounds under which he was arrested.

Moreover, he said, he was also never confronted with any material or any warrant during his detention period or any charge sheet or material was ever placed before the LHC Rawalpindi bench or any inter-court appeal by the defence ministry.

The appeal moved by the Ministry of Defence before the Supreme Court also did not contain any charge sheet, statement of allegations or material on the basis of which he was abducted from the place of his residence, he added.

He said the defence ministry admitted before the LHC during the hearing on Jan 2 that retired colonel Inam was in their custody, but they did not give details of the charge under which he was detained.

The retired officer of army’s legal branch was released contrary to the allegations that sensitive information relating to Pakistan’s nuclear assets, premier intelligence agency as well as postings of some officers had been retrieved from his laptop.

The SC in its last order noted that classified documents in a sealed envelope provided to the court showed that the respondent was being interrogated under the Official Secret Act 1923 as well as offences under the Pakistan Army Act, 1952.

In the federal government appeal, the defence and interior secretaries urged the SC to suspend the high court order till the present case was decided by the apex court. The appeal added that material evidence had been collected against the accused, which prima facie constituted a case against him, while investigation against the lawyer was under way. The release of the detained person at this stage of investigation would amount to hampering the entire process of investigation involving heinous charges, the appeal argued.

Published in Dawn, May 13th, 2020