The Lahore High Court (LHC) order dated 09-01-2020 to release retired army officer-turned-lawyer Col Inam Ul Rahiem Advocate has been challenged in the Supreme Court. Ministries of Defence and Interior through Additional Attorney General Sajid Illyas Bhatti filed an appeal under Article 185(3) of the Constitution and made Husnain Inam son of Col Inam Ul Rahiem (retd) as respondent.
Justice Mirza Viqas Rauf of the LHC Rawalpindi bench on January 9 had declared the detention of Inam Ul Rahiem Advocate illegal and ordered his immediate release. "The detention of Inam Ul Rahiem Advocate with the army authorities is illegal and unlawful. He shall be released forthwith," said the order.
The Lahore High Court's Rawalpindi bench on January 10 rejected an intra-court appeal filed by the Defense Ministry against the single judge bench order.
Col Inam's son (respondent) had filed a writ petition of habeas corpus before the Lahore High Court, Rawalpindi bench, challenging the 'forced' disappearance of his father. The Ministry of Defense in its report/comments filed before the LHC disclosed that the father of the respondent was apprehended by military authorities under Section 2(1) (d) read with Section 59 and 73 of Pakistan Army Act, 1952, and Official Secrets Act, 1923 and the investigation is under process.
The petitioner maintained that the short order having effect as of final order and if implemented, the petitioner (ministry) shall suffer irreparable loss. It prayed to the apex court to set aside LHC order, saying it is against the law and facts of the case.
The LHC, Rawalpindi Bench, has no jurisdiction to pass an order for release of an accused who is involved in espionage activities against the State and the competent military authorities have already taken cognizance of the matter.
The issuance of an order for the release of such accused amounts to overlooking the substantive law, on the subject as stipulated in Article 199(3) of Constitution, the petitioner pleaded.
The High Court has erred to interpret the laws and procedure of special laws.
The single bench of LHC, Rawalpindi Bench, has decided the case in a hasty manner without observing the legal provisions and laid down procedure of arrest, detention and investigation under the Pakistan Army Act, 1952, Pakistan Army Act Rules 1954 and Official Secret Act 1923 in their true perspective and spirit.
The High Court has also overlooked that any person including a retired army officer, if committed any offence, which is an offence under the Pakistan Army Act 1952 and the Official Secrets Act 1923 in relation to the affairs of armed forces, the person would be subject to the Pakistan Army Act and can be arrested/detained for investigation, collection of evidence and trial if recommended in the matter.
There are prima facie case/charges and evidence against the father of the respondent for espionage activities and he has rightly been apprehended and under investigation/inquiry by the military authorities as subject to Pakistan Army Act, but the LHC single bench has failed to apply its judicial mind in appreciating the proposition in its true perspective.
The LHC judge while passing the impugned order has failed to consider and appreciate the latest dictum laid down by the apex court that the provision of Army Act, Rules and Regulations are valid piece of legislation and the action and proceedings taken thereunder are also valid actions and proceedings.
No notice under Order XXVII-A CPC was issued to Attorney General for Pakistan in case of interpretation of any law therefore the impugned order is nullity in the eye of law and not sustainable.