ISLAMABAD: The Supreme Court on Wednesday did not seem particularly pleased with the government’s understanding that civil courts could not try serving military personnel for an offence. It expressed the displeasure during a hearing on the issue of the 35 prisoners who went missing from a military internment centre in Malakand.

The three-member bench, headed by Justice Jawwad Khawaja, asked Attorney General Salman Aslam Butt and Khyber Pakhtunkhwa Advocate General Abdul Latif Yousufzai to assist the court in ascertaining whether a criminal case could be registered against armed forces personnel.

If the answer is yes, then — the court further asked — what is the appropriate forum to try the offender; a general court martial under the Pakistan Army Act (PAA) 1952 or an ordinary court of law.

The court had taken up this matter to ensure compliance with its verdict of Dec 10, in the case of missing person Yasin Shah, initiated on the application of his brother Muhabbat Shah. In the verdict, the court held the army responsible for removing 35 persons from the Malakand Internment Centre.

At a previous hearing, the SC was told that an FIR had been registered against Naib Subedar Amanullah Baig and others – who were posted at the army’s Internment Centre in Malakand Fort – for removing 35 individuals from the detention facility.

The report was lodged on behalf of Defence Minister Khawaja Mohammad Asif at the Malakand Levy Post and the case was registered under Section 346 of the Pakistan Penal Code (PPC), which deals with wrongful confinement in a secret place.

Subsequently, the court ordered the federal and provincial governments to ensure diligent and transparent investigation, instructing them to add charges under whichever sections of the PPC they deemed necessary to be included in the case.

But when the case was taken up again on April 16, Deputy Attorney General Waqas Dar submitted a one-page statement on behalf of the Ministry of Defence, informing the court that the main accused was a serving member of the armed forces and subject to punishment under the PAA.

On Wednesday, Yousufzai repeated the same information before the court and submitted the letter which the Defence Ministry had sent to the Malakand deputy commissioner.

“The competent military authority under Section 94 of the PAA, Section 549 of the Criminal Procedure Code (CrPC) and Rule 373 of the Army Regulations read with Pakistan Army Act (Rule) 168 has taken due cognizance of the case and has decided that the accused be dealt with under PAA,” the letter reads.

According to the letter, an inquiry had already been ordered. The outcome of investigation and any action taken in the case against the accused would be communicated, for police record, in due course of time in the light of Rule 374 of army regulations.

Following receipt of the letter, the Malakand DC replied on March 25 that the case had been closed and files submitted to the authorities for further action.

During Wednesday’s proceedings, Justice Khawaja observed: “They think they are the rulers and the deputy commissioner is their subject,” adding that the constitution gave civil courts primacy over military courts in matters of concurrent jurisdiction.

“This is not a matter of discretion, but a law,” the judge observed, recalling that in a similar case regarding the enforced disappearance of one Abida Malik, the court had considered the registration of an FIR against army personnel.

When the court sought an opinion from Deputy Attorney General Waqas Dar, he grudgingly replied that an FIR cannot be registered against army personnel.

Dissatisfied with the answer, the court observed that it would consider the question of registration of an FIR against military personnel.

Both the AG and the KPK advocate general will assist the court on the questions formulated when the case is taken up again on Thursday (today).

Published in Dawn, May 15th, 2014