ISLAMABAD: The Supreme Court (SC) on Wednesday wondered how a civilian/retired army official can be court-martialed as it resumed hearing on a petition filed by the Ministry of Defence against a Lahore High Court (LHC) decision directing for the immediate release of Lt Col (r) Inamur Rahim.
Earlier in January this year, a three-member bench, headed by Justice Mushir Alam and comprising Justice Mazhar Alam Khan Miankhel and Justice Munib Akhtar, took up the petition against the LHC order which had declared Rahim’s detention “illegal”.
During Wednesday’s hearing, the apex court further asked the reasoning behind applying the Official Secrets Act, 1923, on a retired military 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. To which, AAG Bhatti affirmed that there were “other” reasons behind the release.
Rahim, a petitioner in multiple cases of allegedly missing persons, was picked up from his residence by law enforcement officials in December last year. Subsequently, on Jan 2, the Defence Ministry informed the LHC that Rahim was in the custody of its subordinate agency and that he was being probed for allegedly violating the Official Secrets Act, 1923 — the anti-espionage law.
Announcing its verdict on a petition on Jan 9, the LHC had termed Inam’s detention against the law and directed authorities to set him free. However, on Jan 11, the government moved the Supreme Court against the order, saying that the detainee is “part of a spy network”.
Subsequently, on Jan 22, the Defence Ministry assured the apex court that Inam will be released when “certain conditions” are met.
During Wednesday’s hearing, 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 Defence Ministry’s Director Law 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.