ISLAMABAD: The Supreme Court on Wednesday asked how a civilian can be court-martialed as it resumed hearing of the defence ministry's plea against a Lahore High Court (LHC) decision ordering the immediate release of Colonel (retd) Inamur Rahim.
The observation was made by a three-member bench headed by Justice Mushir Alam and comprising Justice Mazhar Alam Khan Miankhel and Justice Munib Akhtar.
Rahim is known for raising his voice and protesting missing persons’ cases and approaching the courts for their safe recovery. The advocate was picked up on December 17, 2019, from his home in Rawalpindi. He returned home in January after over a month of disappearance.
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During today's hearing, the apex court further asked the reasoning behind applying the Official Secrets Act 1923 on a retired officer.
Additional Attorney General (AAG) Sajid Ilyas Bhatti responded that the ex-military man had been released but was still under investigation.
Justice Alam noted that the military had levelled serious allegations against Inam before releasing him. “He was not released on court orders,” he added. The additional attorney general affirmed that there were "other" reasons behind the release.
Justice Akhtar remarked that the concerning matter was about the serious allegations and not the release. “The apex court has already said a civilian cannot be court-martialed,” he said adding that an amendment to the Constitution would be required to do so.
He further observed that court-martial of a retired colonel would be a violation of SC directives. The judge remarked that only a criminal court can decide on a crime of civilian nature committed by a military officer or a civilian.
Justice Akhtar also noted that a court-martial cannot be conducted over civil offence without the permission of the federal government and criminal courts are empowered to stop the court-martial proceedings.
Justice Alam questioned whether individuals were “picked up” without thorough deliberation. Justice Akhtar remarked that with valid evidence, the commanding officer has to decide whether the case should be referred to a court or the suspect be court-martialed.
When Director Law Defence Ministry Falak Naz started to speak, the bench remarked that the additional attorney general was present to represent the government and pointed out that he could not speak without permission of the court or the counsel.
“You can only reply when questioned by the bench,” said Justice Akhtar and reminded Naz that her job was to assist the additional attorney general.
Bhatti maintained that the LHC had issued a detailed judgment in the case and sought time to respond to points raised in it. The AAG informed the apex court that he would reply after consulting with concerned authorities.
Accepting his request, the bench gave the AAG three weeks to submit a reply and adjourned the hearing.
Justice Alam also directed Bhatti to come prepared to explain whether a civilian can be court-martialed in light of Section 549 of the Criminal Procedure Code (CrPC) and Section 94 and 95 of the Pakistan Army Act 1952.
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Section 549 of the CrPC: Delivery to military authorities of persons liable to be tried by Court-martial.
(1)The Central Government may make rules consistent with this Code and the [Pakistan Army Act, 1952 (XXXIX of 1952), the Pakistan Air Force Act, 1953 (VI of 1953, and the Pakistan Navy Ordinance, 1961 (XXXV of 1961] and any similar law for the time being in force as to the cases in which person subject to military naval or air force law shall be tried by a Court to which this Code applies, or by Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules and shall in proper cases deliver him together with a statement of the offence of which he is accused to the commanding officer of the regiment, corps, ship or detachment to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by Court-martial.
(2) Apprehension of such persons. Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavour to apprehend and secure any person accused of such offence.
(3) Notwithstanding anything contained in this Code, if the person arrested by the Police is a person subject to the Pakistan Army Act, 1952 (XXXIX of 1952) and the offence for which he is accused is triable by a Court-martial, the custody of such person and the investigation of the offence of which he is accused may be taken over by the Commending Officer of such person under the said Act.]
Section 94 of the PAA: Order in case of concurrent jurisdiction of Court martial and Criminal Court.
When a Criminal Court and a Court martial have each jurisdiction in respect of a civil offence, it shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted and, if that officer decides that they shall be instituted before a Court martial, to direct that the accused person shall be detained in military custody.
Section 95 of the PAA: Power of Criminal Court to require delivery of offender.
(1) When a Criminal Court having jurisdiction is of the opinion that proceedings ought to be instituted before itself in respect of any civil offence, it may, by written notice, require the prescribed officer, at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the 1 [Federal Government].
(2) In every such case, the said officer shall either deliver over the offender in compliance with the requisition or shall forthwith refer the question as to the Court before which the proceedings are to be instituted for the determination of the 1 [Federal Government], whose order upon such reference shall be final.