ISLAMABAD: The Supreme Court will determine on Wednesday whether or not a civilian can be tried under the Pakistan Army Act (PAA), 1952, by the Field General Court Martial when it resumes the hearing of the federal government’s appeal in the detention case of retired Lt Col Inam-ul-Rahim.

A two-judge Supreme Court bench consisting of Justice Mushir Alam and Justice Yahya Afridi will take up the federal government’s appeal against the Jan 9 order in which the Rawalpindi bench of the Lahore High Court while hearing the habeas corpus petition of Husnain Inam, son of Mr Rahim, had declared the latter’s detention as unlawful.

In its order of March 3, the Supreme Court had asked the federal government to assist it in finding could fundamental rights as enshrined in Part II of Chapter I of the constitution be denied to a person simply because he was made a subject of the PAA, despite the fact that he was not a member of the armed forces.

The apex court has already issued notice to Attorney General Khalid Jawed Khan to assist it in understanding the difference between the languages used in Article 8(3) and Article 199 (3) of the constitution.

Hearing of government appeal in detention case of army’s ex-lawyer set for 13th

Article 8(3) says that any law inconsistent or in derogation of the fundamental rights will be considered void but this provision is not applicable to members of the armed forces or of the police or any other forces charged with the maintenance of the public order only to ensure discipline amongst them.

Whereas 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 bars the jurisdiction of it if it concerns members of the armed forces or who is for the time being made subject to laws relating to the armed forces.

In its order of March 4, the Supreme Court had observed that the distinction between the two provisions [Article 8(3) and Article 199(3)] prima facie seems to indicate that the fundamental rights are available to persons made subject to PAA.

When the case will be resumed on May 13, the federal government will assist the court about the interplay and effect of these constitutional provisions in the facts and circumstances of the present case.

The AG will also assist the court to the effect on the exercise of discretion conferred by Section 94 of the PAA, which empowers the presiding officer the discretion to decide whether a person accused of civil offence 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.

Inam-ul-Rahim, who is former lawyer of the army, was picked up by the military authorities from his home in Rawalpindi on Dec 17, 2019 but on Jan 22 the federal government surprised the Supreme Court by stating that the detained lawyer was being released.

The lawyer was released contrary to earlier allegations when the former AG Anwar Mansoor had told the court that information of sensitive nature relating to Pakistan’s nuclear assets, premier intelligence agency — Inter Services Intelligence (ISI) — as well as postings of some officers had been retrieved from the laptop of Inam-ul-Rahim which had also been transmitted.

Subsequently, the Supreme Court had noted in its last order that classified documents in a sealed envelope provided to the court showed that the respondent (Inam-ul-Rahim) was being interrogated under the Official Secret Act, 1923, as well as offences under the PAA, 1952.

In its appeal before the Supreme Court, the secretaries of defence as well as interior had pleaded that the high court order be suspended till the present case is decided by the apex court, adding that investigation against the lawyer was in process besides material evidence had also been collected against the accused, which prima facie constituted a case against him.

Thus the release of the detained person at this stage of investigation would amount to hampering the entire process of investigation involving heinous charges, the petition had feared.

Later Inam-ul-Rahim told the media that his laptop, containing sensitive information, was still with him and was neither taken away from his home nor it needed any password to run.

Published in Dawn, May 10th, 2020