Inamul Rahim case: Can a civilian be court martialed, asks SC

ISLAMABAD: The Supreme Court (SC) on Wednesday questioned as to how a civilian can be court martialed and sought explanation from the federal government in light of Section 549 of the Criminal Procedure Code (CrPC) and Section 94 and 95 of the Pakistan Army Act 1952.

A three-member bench of the apex court headed by Justice Mushir Alam and comprising Justice Mazhar Alam Khan Miankhel and Justice Munib Akhtar heard an appeal of Ministry of Defence against the order passed by the Lahore High Court Rawalpindi Bench, declaring the abduction and detention of Col (R) Inamul Rahim Advocate as illegal and unconstitutional.

Advocate Col (R) Inamul Rahem who is known for raising his voice and protesting missing persons’ cases and approaching the courts for their safe recovery, was picked on December 17, 2019, from his home in Rawalpindi.

Later on, Husnain Inam had filed Habeas Corpus writ petition with the Lahore High Court Rawalpindi Bench, challenging the forced disappearance of his father.

A single bench of the LHC Rawalpindi Bench headed by Justice Mirza Viqas Rauf on January 9 declared Raheem’s detention as illegal and unlawful, directing his immediate release.

“For the reasons recorded to be later on, this petition is accepted, as a result thereof, detention of Inamul Rahim advocate is declared illegal and unlawful. He shall be released forthwith,” the bench had held.

The Ministry of Defence, however, filed an application with the Supreme Court praying that the operation of the impugned order dated January 9 may kindly be suspended till the final disposal of main CPLA in the interest of justice.

On Wednesday during the course of hearing, Deputy Attorney Sajid Ilyas Bhatti appeared before the court while Col (R) Inamul Rahem advocate, the respondent was present in the courtroom along with his counsels.

Justice Mushir Alam asked the law officer that the respondent Col (R) Inamul Rahem is a retired officer, how the Official Secret Act could be applied on him. Additional Attorney General Sajid Ilyas Bhatti replied that the respondent has been released but he is still under interrogation.

Justice Mushir Alam recalled that during the first hearing of the instant matter they were all horrified when the former Attorney General Anwar Mansoor Khan made a disclosure about the respondent and his association with some intelligence network and it seemed on that day that a sky had fallen.

But after 48 hours, the AG appeared before the court and made a statement that the Defence Ministry had decided to release him”, Justice Mushir Alam added.

“This was the way the case was made against with such a serious allegation and then you went for a sudden release on your own”, Justice Mushir Alam further asked the law officer.

The judge further asked as to whether individuals were “picked up” without thorough consideration.

“It is the commanding officer who after collecting solid evidence is competent to decide as to whether the case should be referred to a court or the suspect be court-martialed”, Justice Muneeb Akhtar noted.

Sajid Ilyas Bhatti, however, contended that there were “other” reasons behind the respondent’s release. Justice Muneeb Akhtar, another member of the bench, observed that the Supreme Court had already held that a civilian cannot be court martialed, adding that an amendment to the Constitution would be required in this regard.

“Hence the court martial of a retired colonel would be a violation of directives, issued by the apex court”, Justice Muneeb Akhtar remarked adding that only a criminal court has the jurisdiction to decide on a crime of civilian nature committed by a military officer or a civilian.

The judge further observed that one cannot be court martialed over a civil offence without the permission of the federal government adding that criminal courts are empowered to stop the court martial proceedings.

Meanwhile, the court restrained Brigadier Falak Naz, Director Legal, Ministry of Defence who started to speak. The court observed that Additional Attorney General was present in the courtroom on behalf of the federal government hence he could not speak without permission of the court.

The court asked Naz that his job was to assist the law officer, representing the federal government and he can only reply when it asks questions from him.

Meanwhile, Sajid Ilyas Bhatti sought some time for responding to the points, raised by the Lahore High Court in its detailed judgment delivered in the instant matter. He told the court that he would submit his reply after seeking instructions from the relevant authorities.

The court after accepting his plea, directed him to come well prepared on the next date of hearing and assist it as to 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 and adjourned the hearing for three weeks.